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'.35J 

THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


CASES    ON    DAMAGES 


SELECTED  FROM  DECISIONS  OF 


ENGLISH  AND  AMERICAN  COURTS 


BY 


FLOYD  R.  MECHEM,  A.  M. 

"I 

PROFESSOR  OF  LAW  IN  THE  UNIVERSITY  OF  CHICAGO 


BARRY  GILBERT,  A.  B.,  LL.  B. 

PR0FES30E  OF  LAW  IN  THE  UNIVERSITY  OF  ILLINOIS 


AMERICAN  CASEBOOK  SERIES 
JAMES  BROWN  SCOTT 

GENERAL   EDITOR 


ST.  PAUL 

WEST  PUBLISHING  COMPANY 
1909 


r 

t90£> 


CTOPTEIGHT,   1909, 
BY 

WEST  PUBLISHING  COMPANY 
(GiLB.  Dam.) 


TO 

JOHN  HENRY  WIGMORE,  A.  M.,  LL.  D., 

Dean  of  the  College  of  Law  of  Northwestern  University, 

whose  success  as  an  author  and  teacher  in  the  law  comes  as  no  sur- 
prise to  one  acquainted  with  his  analytical  and  constructive 
genius,  his  untiring  energy  and  enthusiasm,   and 
the  careful  painstaking  detail  of  his  work. 

(iii)* 


735265 


THE  AMERICAN  CASEBOOK 
SERIES. 


For  years  past  the  science  of  law  has  been  taught  by  lectures,  the 
use  of  text-books  and  more  recently  by  the  detailed  study,  in  the 
class-room,  of  selected  cases. 

Each  method  has  its  advocates,  but  it  is  generally  agreed  that  the 
lecture  system  should  be  discarded  because  in  it  the  lecturer  does 
the  work  and  the  student  is  either  a  willing  receptacle  or  offers  a 
passive  resistance.  It  is  not  too  much  to  say  that  the  lecture  system 
is  doomed. 

Instruction  by  the  means  of  text-books  as  a  supplement  or  sub- 
stitute for  the  formal  lecture  has  made  its  formal  entry  into  the  educa- 
tional world  and  obtains  widely ;  but  the  system  is  faulty  and  mustpass 
away  as  the  exclusive  means  of  studying  and  teaching  law.  It  is  an 
improvement  on  the  formal  lecture  in  that  the  student  works,  but  if  it 
cannot  be  said  that  he  works  to  no  purpose,  it  is  a  fact  that  he  works 
from  the  wrong  end.  The  rule  is  learned  without  the  reason,  or  both 
rule  and  reason  are  stated  in  the  abstract  as  the  resultant  rather  than 
as  the  process.  If  we  forget  the  rule  we  cannot  solve  the  problem ;  if 
we  have  learned  to  solve  the  problem  it  is  a  simple  matter  to  formulate 
a  rule  of  our  own.  The  text-book  method  may  strengthen  the  mem- 
ory; it  may  not  train  the  mind,  nor  does  it  necessarily  strengthen  it. 
A  text,  if  it  be  short,  is  at  best  a  summary,  and  a  summary  presup- 
suposes  previous  knowledge. 

If,  however,  law  be  considered  as  a  science  rather  than  a  collection 
of  arbitrary  rules  and  regulations,  it  follows  that  it  should  be  studied 
as  a  science.  Thus  to  state  the  problem  is  to  solve  it ;  the  laboratory 
method  has  displaced  the  lecture,  and  the  text  yields  to  the  actual 
experiment.  The  law  reports  are  in  more  senses  than  one  books  of 
experiments,  and,  by  studying  the  actual  case,  the  student  co-operates 
with  the  judge  and  works  out  the  conclusion  however  complicated 
the  facts  or  the  principles  involved.  A  study  of  cases  arranged  his- 
torically develops  the  knowledge  of  the  law,  and  each  case  is  seen  to 
be  not  an  isolated  fact  but  a  necessary  link  in  the  chain  of  develop- 
ment. The  study  of  the  case  is  clearly  the  most  practical  method, 
for  the  student  already  does  in  his  undergraduate  days  what  he  must 
do  all  his  life;  it  is  curiously  the  most  theoretical  and  the  most  prac- 
tical. For  a  discussion  of  the  case  in  all  its  parts  develops  analysis, 
the  comparison   of   many   cases   establishes  a   general   principle,   and 

(V) 


Vi  '  PREFACE. 

the  arrangement  and  classification  of  principles  dealing  with  a  sub- 
ject make  the  law  on  that  subject. 

In  this  way  training  and  knowledge,  the  means  and  the  end  of 
legal  study,  go  hand  and  hand. 

The  obvious  advantages  of  the  study  of  law  by  means  of  selected 
cases  make  its  universal  adoption  a  mere  question  of  time. 

The  only  serious  objections  made  to  the  case  method  are  that  it  takes 
too  much  time  to  give  a  student  the  requisite  knowledge  of  the  sub- 
ject in  this  way  and  that  the  system  loses  sight  of  the  difference  be- 
tween the  preparation  of  the  student  and  the  lifelong  training  of  the 
lawyer.  Many  collections  of  cases  seem  open  to  these  objections, 
for  they  are  so  bulky  that  it  is  impossible  to  cover  a  particular  sub- 
ject with  them  in  the  time  ordinarily  allotted  to  it  in  the  class.  In 
this  way  the  student  discusses  only  a  part  of  a  subject.  His  knowl- 
edge is  thorough  as  far  as  it  goes,  but  it  is  incomplete  and  frag- 
mentary. The  knowledge  of  the  subject  as  a  whole  is  deliberately 
sacrificed  to  training  in  a  part  of  the  subject. 

It  would  seem  axiomatic  that  the  size  of  the  casebook  should  cor- 
respond in  general  to  the  amount  of  time  at  the  disposal  of  instructor 
and  student.  As  the  time  element  is,  in  most  cases,  a  nonexpansive 
quantity,  it  necessarily  follows  that,  if  only  a  half  to  two-thirds  of  the 
cases  in  the  present  collections  can  be  discussed  in  class,  the  pres- 
ent casebooks  are  a  third  to  a  half  too  long.  From  a  purely  practical 
and  economic  standpoint  it  is  a  mistake  to  ask  students  to  pay  fof 
1,200  pages  when  they  can  only  use  600,  and  it  must  be  remembered 
that  in  many  schools,  and  with  many  students  in  all  schools,  the  mat- 
ter of  the  cost  of  casebooks  is  important.  Therefore,  for  purely 
practical  reasons,  it  is  believed  that  there  is  a  demand  for  casebooks 
physically  adapted  and  intended  for  use  as  a  whole  in  the  class-room. 

But  aside  from  this,  as  has  been  said,  the  existing  plan  sacrifices 
knowledge  to  training.  It  is  not  denied  that  training  is  important, 
nor  that  for  a  law  student,  considering  the  small  amount  of  actual 
knowledge  the  school  can  hope  to  give  him  in  comparison  with  the 
vast  and  daily  growing  body  of  the  law,  it  is  more  important  than 
mere  knowledge.  It  is,  however,  confidently  asserted  that  knowledge 
is,  after  all,  not  unimportant,  and  that,  in  the  inevitable  compromise 
between  training  and  knowledge,  the  present  casebooks  not  only  de- 
vote too  little  attention  relatively  to  the  inculcation  of  knowledge, 
but  that  they  sacrifice  unnecessarily  knowledge  to  training.  It  is  be- 
lieved that  a  greater  effort  should  be  made  to  cover  the  general  prin- 
ciples of  a  given  subject  in  the  time  allotted,  even  at  the  expense  of 
a  considerable  sacrifice  of  detail.  But  in  this  proposed  readjustment 
of  the  means  to  the  end,  the  fundamental  fact  cannot  be  overlooked 
that  law  is  a  developing  science  and  that  its  present  can  only  be  un- 
derstood through  the  medium  of  its  past.  It  is  recognized  as  im- 
perative that  a  sufficient  number  of  cases  be  given  under  each  topic 


PREFACE.  VU 

treated  to  afford  a  basis  for  comparison  and  discrimination ;  to  show 
the  development  of  the  law  of  the  particular  topic  under  discussion ; 
and  to  afford  the  mental  training  for  which  the  case  system  neces- 
sarily stands.  To  take  a  familiar  illustration:  If  it  is  proposed  to 
inclu'le  in  a  casebook  on  Criminal  Law  one  case  on  abortion,  one  on 
libel,  two  on  perjury,  one  on  larceny  from  an  office,  and  if  in  order  to 
do  this  it  is  necessary  to  limit  the  number  of  cases  on  specific  intent  to 
such  a  degree  as  to  leave  too  few  on  this  topic  to  develop  it  fully 
and  to  furnish  the  student  with  training,  then  the  subjects  of  abor- 
tion, libel,  perjury,  and  larceny  from  an  office  should  be  wholly  omit- 
ted. The  student  must  needs  acquire  an  adequate  knowledge  of  these 
subjects,  but  the  training  already  had  in  the  underlying  principles  of 
criminal  law  will  render  the  acquisition  of  this  knowledge  compara- 
tively easy.  The  exercise  of  a  wise  discretion  would  treat  fundamen- 
tals thoroughly:  principle  should  not  yield  to  detail. 

Impressed  by  the  excellence  of  the  case  system  as  a  means  of  legal 
education,  but  convinced  that  no  satisfactory  adjustment  of  the  con- 
flict between  training  and  knowledge  under  existing  time  restrictions 
has  3'et  been  found,  the  General  Editor  takes  pleasure  in  announcing 
a  series  of  scholarly  casebooks,  prepared  with  special  reference  to 
the  needs  and  limitations  of  the  class-room,  on  the  fundamental  sub- 
jects of  legal  education,  which,  through  a  judicious  rearrangement 
of  emphasis,  shall  provide  adequate  training  combined  with  a  thor- 
ough knowledge  of  the  general  principles  of  the  subject.  The  collec- 
tion will  develop  the  law  historically  and  scientifically;  English  cases 
will  give  the  origin  and  development  of  the  law  in  England ;  Ameri- 
can cases  will  trace  its  expansion  and  modification  in  America;  notes 
and  annotations  will  suggest  phases  omitted  in  the  printed  case. 
Cumulative  references  will  be  avoided,  for  the  footnote  may  not  hope 
to  rival  the  digest. 

The  law  will  thus  be  presented  as  an  organic  growth,  and  the  neces- 
sary connection  between  the  past  and  the  present  will  be  obvious. 

The  importance  and  difficulty  of  the  subject  as  well  as  the  time  that 
can  properly  be  devoted  to  it  will  be  carefully  considered  so  that  each 
book  may  be  completed  within  the  time  allotted  to  the  particular  sub- 
ject. 

It  is  equally  obvious  that  some  subjects  are  treated  at  too  great 
length,  and  that  a  less  important  subject  demands  briefer  treatment. 
A  small  book  for  a  small  subject. 

In  this  way  it  will  be  alike  possible  for  teacher  and  class  to  com- 
plete each  book  instead  of  skimming  it  or  neglecting  whole  sections ; 
and  more  subjects  may  be  elected  by  the  student  if  presented  in  short- 
er form  based  upon  the  relative  importance  of  the  subject  and  the 
time  allotted  to  its  mastery. 

Training  and  knowledge  go  hand  in  hand,  and  Training  and  Knowl- 
edge are  the  keynotes  of  the  series. 


Vi  '  PREFACE. 

the  arrangement  and  classification  of  principles  dealing  with  a  sub- 
ject make  the  law  on  that  subject. 

In  this  way  training  and  knowledge,  the  means  and  the  end  of 
legal  study,  go  hand  and  hand. 

The  obvious  advantages  of  the  study  of  law  by  means  of  selected 
cases  make  its  universal  adoption  a  mere  question  of  time. 

The  only  serious  objections  made  to  the  case  method  are  that  it  takes 
too  much  time  to  give  a  student  the  requisite  knowledge  of  the  sub- 
ject in  this  way  and  that  the  system  loses  sight  of  the  difference  be- 
tween the  preparation  of  the  student  and  the  lifelong  training  of  the 
lawyer.  Many  collections  of  cases  seem  open  to  these  objections, 
for  they  are  so  bulky  that  it  is  impossible  to  cover  a  particular  sub- 
ject with  them  in  the  time  ordinarily  allotted  to  it  in  the  class.  In 
this  way  the  student  discusses  only  a  part  of  a  subject.  His  knowl- 
edge is  thorough  as  far  as  it  goes,  but  it  is  incomplete  and  frag- 
mentary. The  knowledge  of  the  subject  as  a  whole  is  deliberately 
sacrificed  to  training  in  a  part  of  the  subject. 

It  would  seem  axiomatic  that  the  size  of  the  casebook  should  cor- 
respond in  general  to  the  amount  of  time  at  the  disposal  of  instructor 
and  student.  As  the  time  element  is,  in  most  cases,  a  nonexpansive 
quantity,  it  necessarily  follows  that,  if  only  a  half  to  two-thirds  of  the 
cases  in  the  present  collections  can  be  discussed  in  class,  the  pres- 
ent casebooks  are  a  third  to  a  half  too  long.  From  a  purely  practical 
and  economic  standpoint  it  is  a  mistake  to  ask  students  to  pay  for 
1,200  pages  when  they  can  only  use  600,  and  it  must  be  remembered 
that  in  many  schools,  and  with  many  students  in  all  schools,  the  mat- 
ter of  the  cost  of  casebooks  is  important.  Therefore,  for  purely 
practical  reasons,  it  is  believed  that  there  is  a  demand  for  casebooks 
physically  adapted  and  intended  for  use  as  a  whole  in  the  class-room. 

But  aside  from  this,  as  has  been  said,  the  existing  plan  sacrifices 
knowledge  to  training.  It  is  not  denied  that  training  is  important, 
nor  that  for  a  law  student,  considering  the  small  amount  of  actual 
knowledge  the  school  can  hope  to  give  him  in  comparison  with  the 
vast  and  daily  growing  body  of  the  law,  it  is  more  important  than 
mere  knowledge.  It  is,  however,  confidently  asserted  that  knowledge 
is,  after  all,  not  unimportant,  and  that,  in  the  inevitable  compromise 
between  training  and  knowledge,  the  present  casebooks  not  only  de- 
vote too  little  attention  relatively  to  the  inculcation  of  knowledge, 
but  that  they  sacrifice  unnecessarily  knowledge  to  training.  It  is  be- 
lieved that  a  greater  effort  should  be  made  to  cover  the  general  prin- 
ciples of  a  given  subject  in  the  time  allotted,  even  at  the  expense  of 
a  considerable  sacrifice  of  detail.  But  in  this  proposed  readjustment 
of  the  means  to  the  end,  the  fundamental  fact  cannot  be  overlooked 
that  law  is  a  developing  science  and  that  its  present  can  only  be  un- 
derstood through  the  medium  of  its  past.  It  is  recognized  as  im- 
perative that  a  sufficient  number  of  cases  be  given  under  each  topic 


PREFACE.  VU 

treated  to  afford  a  basis  for  comparison  and  difcrimination;  to  show 
the  development  of  the  law  of  the  particular  topic  under  discussion ; 
and  to  afford  the  mental  training  for  which  the  case  system  neces- 
sarily stands.  To  take  a  familiar  illustration:  If  it  is  proposed  to 
include  in  a  casebook  on  Criminal  Law  one  case  on  abortion,  one  on 
libel,  two  on  perjury,  one  on  larceny  from  an  office,  and  if  in  order  to 
do  this  it  is  necessary  to  limit  the  number  of  cases  on  specific  intent  to 
such  a  degree  as  to  leave  too  few  on  this  topic  to  develop  it  fully 
and  to  furnish  the  student  with  training,  then  the  subjects  of  abor- 
tion, libel,  perjury,  and  larceny  from  an  office  should  be  wholly  omit- 
ted. The  student  must  needs  acquire  an  adequate  knowledge  of  these 
subjects,  but  the  training  already  had  in  the  underlying  principles  of 
criminal  law  will  render  the  acquisition  of  this  knowledge  compara- 
tively easy.  The  exercise  of  a  wise  discretion  would  treat  fundamen- 
tals thoroughly:  principle  should  not  yield  to  detail. 

Impressed  by  the  excellence  of  the  case  system  as  a  means  of  legal 
education,  but  convinced  that  no  satisfactory  adjustment  of  the  con- 
flict between  training  and  knowledge  under  existing  time  restrictions 
has  yet  been  found,  the  General  Editor  takes  pleasure  in  announcing 
a  series  of  scholarly  casebooks,  prepared  with  special  reference  to 
the  needs  and  limitations  of  the  class-room,  on  the  fundam.ental  sub- 
jects of  legal  education,  which,  through  a  judicious  rearrangement 
of  emphasis,  shall  provide  adequate  training  combined  with  a  thor- 
ough knowledge  of  the  general  principles  of  the  subject.  The  collec- 
tion will  develop  the  law  historically  and  scientifically;  English  cases 
will  give  the  origin  and  development  of  the  law  in  England ;  Ameri- 
can cases  will  trace  its  expansion  and  modification  in  America;  notes 
and  annotations  will  suggest  phases  omitted  in  the  printed  case. 
Cumulative  references  will  be  avoided,  for  the  footnote  may  not  hope 
to  rival  the  digest. 

The  law  will  thus  be  presented  as  an  organic  growth,  and  the  neces- 
sary connection  between  the  past  and  the  present  will  be  obvious. 

The  importance  and  difficulty  of  the  subject  as  well  as  the  time  that 
can  properly  be  devoted  to  it  will  be  carefully  considered  so  that  each 
book  may  be  completed  within  the  time  allotted  to  the  particular  sub- 
ject. 

It  is  equally  obvious  that  some  subjects  are  treated  at  too  great 
length,  and  that  a  less  important  subject  demands  briefer  treatment. 
A  small  book  for  a  small  subject. 

In  this  way  it  will  be  alike  possible  for  teacher  and  class  to  com- 
plete each  book  instead  of  skimming  it  or  neglecting  whole  sections ; 
and  more  subjects  may  be  elected  by  the  student  if  presented  in  short- 
er form  based  upon  the  relative  importance  of  the  subject  and  the 
time  allotted  to  its  mastery. 

Training  and  knowledge  go  hand  in  hand,  and  Training  and  Knowl- 
edge are  the  keynotes  of  the  series. 


Viii  PREFACE. 

If  it  be  granted  that  all,  or  nearly  all,  the  studies  required  for  ad- 
mission to  the  bar  should  be  studied  in  course  by  every  student — and 
the  soundness  of  this  contention  can  hardly  be  seriously  doubted — it 
follows  necessarily  that  the  preparation  and  publication  of  collections 
of  cases  exactly  adapted  to  the  purpose  would  be  a  genuine  and  by 
no  means  unimportant  service  to  the  cause  of  legal  education.  And 
this  result  can  best  be  obtained  by  the  preparation  of  a  systematic 
series  of  casebooks  constructed  upon  a  uniform  plan  under  the  super- 
vision of  an  editor  in  chief. 

For  the  basis  of  calculation  the  hour  has  been  taken  as  the  unit.  The 
General  Editor's  personal  experience,  supplemented  by  the  experience 
of  others  in  the  class-room,  leads  to  the  belief  that  approximately  a 
book  of  400  pages  may  be  covered  by  the  average  student  in  half  a 
year  of  two  hours  a  week ;  that  a  book  of  600  pages  may  be  discussed 
in  class  in  three  hours  for  half  a  year;  that  a  book  of  800  pages  may 
be  completed  by  the  student  in  two  hours  a  week  throughout  the  year ; 
and  a  class  may  reasonably  hope  to  master  a  volume  of  1,000  pages 
in  a  year  of  three  hours  a  week.  The  general  rule  will  be  subject  to 
some  modifications  in  connection  with  particular  topics  on  due  con- 
sideration of  their  relative  importance  and  difficulty,  and  the  time 
ordinarily  allotted  to  them  in  the  law  school  curriculum. 

The  following  subjects  are  deemed  essential  in  that  a  knowledge  of 
them  (with  the  exception  of  International  Law  and  General  Juris- 
prudence) is  universally  required  for  admission  to  the  bar: 

Administrative  Law.  Insurance. 

Agency.  International  Law. 

Bills  and  Notes.  Jurisprudence. 

Carriers.  Mortgages. 

Contracts.  Partnership. 

Corporations.  Personal  Property,  including 

Constitutional  Law.  the  Law  of  Bailment. 

Criminal  Law.  T?     i  P  «■     J  ^^*  ^®."* 

Criminal  Procedure.  ^  1  id 

Common-Law  Pleading.  Public  Corporations. 

Conflict  of  Laws.  Quasi  Contracts. 

Code  Pleading.  Sales. 

Damages.  Suretyship. 

Domestic  Relations.  Torts. 

Equity.  Trusts. 

Equity  Pleading.  Wills  and  Administration. 

Evidence. 


International  Law  is  included  in  the  list  of  essentials  from  its  in- 
trinsic importance  in  our  system  of  law.  As  its  principles  are  simple 
in  comparison  with  municipal  law,  as  their  application  is  less  technical, 


ix 

PREFACE. 


and  as  the  cases  are  generally  interesting:,  it  is  thonght  that  the  book 
mav  he  lar-'er  than  otherwise  would  be  the  case. 

As  an  introduction  to  the  series  a  book  of  Selections  on  General 
Turi  prudence  of  about  500  pages  is  deemed  essential  to  completeness^ 
^ "he  prepa  ation  of  the  casebooks  has  been  intrusted  to  exTenenced 
and  well-known  teachers  of  the  various  subjects  mcluded,  so  that  the 
Sperienee  of  the  elass-room  and  the  needs  of  the  students  w,ll  fur- 
nkh  a  sound  basis  of  selection.  ,    .     ,     , 

While  a  further  list  is  contemplated  of  usual  but  re  at.vely  less  im- 
portant subjects  as  tested  by  the  requirements  for  adn^lSSlon  to  the 
bar  no  announcement  of  them  is  made  at  present. 

The  following  gentlemen  of  standing  and  repute  m  the  profession 
are  at  present  actively  engaged  in  the  preparation  of  the  vanous  case- 
books on  the  indicated  subjects: 
George  W.  Kirchwey,  Dean  of  the  Columbia  University,  School  of 

Law.    Subject,  Real  Property. 
Nathan  Abbott,  Professor  of  Law,  Columbia  University^  /^^^^'J/ 
Dean  of  the  Stanford  University  Law   School.)     Subject,  Per- 
sonal  Property. 
Frank  Irvine,  Dean  of  the  Cornell  University  School  of  Law.    Sub- 
ject, Evidence. 
Harry  S.  Richards,  Dean  of  the  University  of  Wisconsin  School  of 

Law.    Subject,  Corporations. 
James  Parker  Hall,  Dean  of  the  University  of  Chicago  School  of  Law. 

Subject  Constitutional  Law. 
William  R.  Vance,  Dean  of  the  George  Washington  University  Law 

School.    Subject,  Insurance. 
Charles  M.  Hepburn,  Professor  of  Law,  University  of  Indiana.    Sub- 
ject, Torts. 
William  E.  Mikell,  Professor  of  Law,  University  of  Pennsylvama. 

Subjects,  Criminal  Law  and  Criminal  Procedure. 
Georc^e  P.  Costigan,  Jr.,  Dean  of  the  University  of  Nebraska  School 

of  Law.    Subject,  Wills  and  Administration. 
Floyd  R.  Mechem,  Professor  of  Law,  Chicago  University.    Subject, 

Damages.     (Co-author  with  Barry  Gilbert.) 
Barry  Gilbert,  Professor  of  Law.  University  of  Illinois.     Subject, 

Damages.     (Co-author  with  Floyd  R.  I^Iechem.) 
Thaddeus  D.  Kenneson,  Professor  of  Law,  University  of  New  York. 

Subject,  Trusts. 
Charles  Thaddeus  Terry,  Professor   of  Law,   Columbia  University. 
Subject,  Contracts. 


X  PREFACE. 

Albert  M.  Kales,  Professor  of  Law,  Northwestern  University.  Sub- 
ject, Persons. 

Edwin  C.  Goddard,  Professor  of  Law,  University  of  Michigan.  Sub- 
ject, Agency. 

Howard  L.  Smith,  Professor  of  Law,  University  of  Wisconsin.  Sub- 
ject, Bills  and  Notes. 

Edward  S.  Thurston,  Professor  of  Law,  George  Washington  Univer- 
sity.   Subject,  Quasi  Contracts. 

Crawford  D.  Hening,  Professor  of  Law,  University  of  Pennsylvania. 
Stibject,  Suretyship. 

Clarke  B.  Whittier,  Professor  of  Law,  University  of  Chicago.  Sub- 
ject, Pleading. 

Eugene  A.  Gilmore,  Professor  of  Law,  University  of  Wisconsin. 
Subject,  Partnership. 

Joshua  R.  Clark,  Jr.,  Assistant  Professor  of  Law,  George  Washington 
University.    Subject,  Mortgages. 

Ernst  Freund,  Professor  of  Law,  University  of  Chicago.  Subject, 
Administrative  Lazu. 

Frederick  Green,  Professor  of  Law,  University  of  Illinois.  Subject, 
Carriers. 

Ernest  G.  Lorenzen,  Professor  of  Law,  George  Washington  Univer- 
itl.    Subject,  Conflict  of  Lazvs. 

William  C.  Dennis,  Professor  of  Law,  George  Washington  University. 
Subject,  Public  Corporations. 

James  Brown  Scott,  Professor  of  Law,  George  Washington  Univer- 
sity; formerly  Professor  of  Law,  Columbia  University,  New 
York  City.  Subjects,  International  Lain/;  General  Jurisprudence; 
Equity. 

The  following  books  of  the  Series  are  now  published,  or  in  press: 
Partnership,  by  Eugene  A.  Gilmore,  Professor  of  Law,  University  of 
Wisconsin;  Criminal  Law,  by  Wm.  E.  Mikell,  Professor  of  Law, 
University  of  Pennsylvania;  Damages,  by  Barry  Gilbert,  Professor  of 
Law,  University  of  Illinois ;  Conflict  of  Laws,  by  Ernest  G.  Lorenzen, 
Professor  of  Law,  George  Washington  University;  Trusts,  by  Thad- 
dcus  D.  Kenneson,  Professor  of  Law,  University  of  New  York. 

James  Brown  Scott, 

General  Editor. 
Washington,  D.  C,  April,   1909. 


PREFACE. 


Although  the  broad  principles  of  the  law  of  Damages  are  compara- 
tively few,  their  application  to  specific  causes  of  action  takes  us  mto 
every  part  of  the  wide  domain  of  the  common  law.  A  study  of  the 
Measure  of  Damages  must  therefore  be  comprehensive  in  its  scope, 
for  the  quantum  of  recovery  is  an  important,  even  if  a  subsidiary, 
question  in  every  successfully  prosecuted  action  demanding  a  money 
judgment.  A  general  principle  of  damages  may  therefore  find  its 
elucidation  in  a  dozen  different  actions,  which  possess  no  other  com- 
mon element  whatsoever.  Thus  the  inquiry  whether  "gains  prevent- 
ed" are  recoverable  may  arise  equally  in  an  action  of  tort  for  the  de- 
tention, or  for  the  negligent  destruction,  of  property,  upon  trespass 
to  realty,  false  imprisonment,  deceit,  or  personal  injuries,  or  in  ac- 
tions brought  for  breaches  of  the  contracts  of  employment,  marriage, 
sale,  transportation,  or  what  not.  A  court  may  be  called  upon  to  dis- 
cuss the  possibility  of  a  recovery  for  mental  suffering,  now  in  an 
action  for  the  disinterment  or  dissection  of  a  human  body,  now  in  a 
case  of  personal  injuries,  seduction,  assault,  or  slander,  and  now  in  an 
action  for  breach  of  a  contract  to  carry,  a  contract  to  -  marry,  or  a 
contract  to  transmit  a  telegraphic  message. 

Thus,  in  illustrating  the  fundamental  principles  of  the  law  of  Dam- 
ages, rules  in  specific  causes  of  action,  of  necessity,  also,  are  illustrat- 
ed, but  in  such  a  way  that  the  various  elements  of  damage  in  any  given 
cause  of  action  are  presented  piecemeal,  instead  of  as  an  entirety.  To 
attempt,  instead,  to  illustrate  separately  and  successively  the  rules 
in  the  various  kinds  of  actions  likewise,  of  necessity,  is  to  cross  the 
path  of  the  general  principle,  but  also  piecemeal  and  inadequately. 
To  attempt  to  develop  the  general  principle,  and  also  to  present  the 
general  measure  of  damages  in  specific  causes  of  action,  is  thus  in  a 
way  to  traverse  the  same  ground  twice.  Still  the  student  must  under- 
stand general  principles,  and  again  he  ought  to  know  the  full  measure 
of  damages  in  every  given  action,  and  each  as  a  complete  and  individ- 
ual, though  related,  unit  of  knowledge.  With  these  ideas  in  mind,  the 
endeavor  has  been  kept  uppermost  of  presenting  general  principles  as 
an  entirety  in  the  first  part  of  the  book,  and  the  measure  of  damages 
in  particular  actions  in  the  latter  part. 

This  does  not  necessarily  mean  that  a  new  case  must  be  presented 
to  illustrate  each  separate  element  of  damage  in  a  particular  action. 
A  case  illustrating  a  general  principle,  and  printed  for  this  reason,  but 

(xi) 


XU  PREFACE. 

happening  to  involve  the  particular  form  of  action  considered,  may  be 
the  best  obtainable  illustration  therein  as  well,  and  fully  illuminative. 
If  this  be  grouped  with,  or  correlated  with,  the  other  cases  involving 
the  given  cause  of  action,  entirety  of  presentation  may  be  secured  by 
bringing  the  case  again  to  the  student's  mind  upon  the  specific  topic 
under  examination.  Therefore  a  number  of  cross-references  have 
been  embodied  herein,  in  an  attempt  to  unify  the  volume  and  to  cor- 
relate the  various  general  principles  when  the  inquiry  is  directed 
toward  the  specific  cause  of  action,  and  to  illustrate  amply,  by  applica- 
tion to  particular  situations,  when  the  view  is  of  the  general  principle. 
The  volume,  while  divided  into  distinct  portions,  it  is  suggested,  by 
reason  of  such  inter-relation  becomes  one  complete  unit. 

Again,  many  topics  of  the  law  of  Damages,  which  ordinarily  are 
discussed  separately,  are  really  allied.  Thus  Exemplary  Damages  and 
Aggravation  shade  into  one  another  imperceptibly,  and  "Mental  Suf- 
fering" is  usually  but  another  phase  of  the  same  matter.  The  courts 
often  fail  to  distinguish  between  damages  which  are  remote  and  those 
which  are  uncertain,  and  in  many  instances  differentiation  is  difficult. 
These  and  other  similarly  related  topics  are  treated  in  the  time-honor- 
ed fashion — separately — but  the  attempt  is  made  to  show  their  real 
inter-relation  by  means  of  cross-references.  In  the  footnotes  frequent 
citations  will  be  found  of  other  leading,  instructive,  or  illuminative 
cases,  which  are  not  reprinted  in  full  simply  because  of  lack  of  space. 
They  are  suggested  as  additional  material  for  reading  by  each  student, 
but  are  not  intended  to  supplant  further  suggestions  by  the  instructor. 
Considerable  liberty  has  been  taken  in  cutting  the  cases  reprinted.  The 
necessary  bounds  of  the  book  have  necessitated  the  cutting  of  each  case 
down  to  the  lowest  consistent  limits.  Long  statements  of  fact,  too, 
have  been  rewritten,  and  unnecessary  citations  of  authority  omitted. 

The  subject  of  Damages,  possibly  more  than  any  other  division  of 
the  law,  is  of  relatively  modern  development.  The  jury  in  the  early 
days  exercised  an  almost  complete  control  over  the  allowance  of  dam- 
ages, subject  to  little  officious  intermeddling  from  the  bench.  Even  at 
the  beginning  of  the  nineteenth  century,  the  functions  of  the  court  and 
of  the  jury  in  the  estimation  of  damages  were  not  clearly  established. 
It  was  not  until  quite  recent  times  that  the  court  undertook  to  pre- 
scribe definite  rules  which  should  restrain  and  guide  the  jury's  rather 
arbitrary  discretion.  Hadley  v.  Baxendale,  which  is  the  very  founda- 
tion case  as  to  damages  arising  out  of  breach  of  contract,  was  not  de- 
cided until  1854.  In  consequence  it  will  be  found  that  under  many 
headings  there  is  a  dearth  of  material  of  an  historical  character.  Many 
doctrines  seem  never  to  have  given  warning  of  their  birth,  but  to  have 
sprung  "full-panoplied  from  the  head  of  Zeus."  An  unusual  number 
of  the  leading  cases  are  American.  The  development  of  the  law,  too, 
in  many  topics  (as,  for  example,  in  "Mental  Suffering")  is  almost  en- 
tirely American. 


PREFACE.  XIU 

In  many  other  topics  it  will  be  found  inexpedient  (having  a  due 
regard  to  the  purpose  of  this  series  as  a  whole)  to  include  such  his- 
torical matter  as  may  exist,  because  to  do  so  would  be  to  invade  the 
field  of  some  other  author.  Thus,  to  present  the  general  measure  of 
damages  in  "Contracts"  (under  Part  V  herein),  with  particularity  of 
developmental  detail,  would  be  to  cover  the  entire  subject  of  Breach 
of  Contract  and  Quasi  Contracts.  To  do  so  in  "Conversion,"  or  in 
"Direct  and  Consequential  Damages,"  would  be  to  develop  important 
phases  of  the  law  of  Torts.  To  do  so  in  contracts  concerning  Realty 
would  be  to  wander  unduly  in  the  field  of  Real  Property.  As  Dam- 
ages thus  takes  one  the  full  round  of  the  legal  field,  a  wise  discretion 
on  the  part  of  the  compiler  of  a  set  of  cases  therein  requires  that  he 
should  constantly  bear  in  mind  the  subsidiary  character  of  his  subject, 
and  that  he  should  keep  his  feet  from  unwarrantable  trespasses. 

These  considerations  will  account  for  an  apparently  large  number  of 
modern  cases  in  this  collection. 

The  volume  is  an  outgrowth  of  a  book  containing  some  263  cases 
published  by  Mr.  Mechem  for  use  in  his  classes  at  the  University  of 
Michigan.  No  attempt  was  made  therein  to  eliminate  those  portions 
of  the  cases  that  did  not  deal  with  questions  of  damages.  One  hun- 
dred and  fifty  of  these  cases,  with  all  extraneous  matter  cut  out,  are 
now  republished.  For  the  exclusion  of  the  other  one  hundred  and 
thirteen  cases  omitted,  for  the  entire  rearrangement  in  scheme,  outline, 
preface^  and  index,  for  the  cutting  of  all  the  cases  which  are  included, 
for  the  annotations,  restatements  of  the  facts,  and  cross-references, 
and  for  the  selection  of  the  one  hundred  and  eighty-four  new  cases 
which  have  been  added,  the  other  collaborator  must  take  entire  re- 
sponsibility. 

Cbampaign,  Nov.  3,  1908. 


TABLE  OF  CONTENTS. 


Section  Pase 

PART  I. 
Damnum  Absque  Injuria 1 

PART  II. 
Nominal  Damages  4 


PART  III. 
Liquidation  of  Damages 23 

PART  IV. 
Discretionary  Damages. 

chapter  i. 
In  Genebai, 55 

CHAPTER  II. 
Aggravation 78 

CHAPTER  HI. 
ExEMPLABY  Damages 85 

CHAPTER  IV. 
Mitigation   126 

PART  V. 
Compensatory  Damages. 

CHAPTER  I. 

General  Limitations. 

1.     Direct  and  Consequential  Damages 145 

I.     In    Tort 145 

II.     In    Contract 189 

III.     Avoidable  Consequences 220 

Gilb.Dam.  (XV) 


Xvi  TABLE   OF   CONTENTS. 

Section  Page 

2.  Certainty  of  Proof 241 

3.  Entirety  of  Recovery 280 

I.     Ck)-existence  of  Wrong  and  Loss 280' 

II.  Singleness  of  Recovery 289 

(A)  In    General 289 

(B)  Continuing    Torts 292 

(O)     Continuing    Contracts 303 

(D)     Actions  by  Owner   of  Limited  Interest 325 

(a)  Personalty    325 

(b)  Realty    329 

4.  Exact  Indemnity  as  the  Object  of  the  Law 334 

I.    Value    334 

(A)  How    Determined 334 

(B)  Fluctuations  in  Value 356 

(C)  Addition  of  Value  l.y  Wrongdoer 374 

n.     Reduction  of  Original  Loss 394 

III.  Interest 406 

IV.  Expenses  Incurred 422 

(A)  In  Reliance  upon  Promise 422 

(B)  In  Attempt  to  Avoid  Consequences 425 

(C)  Court  Expenses 428 


CHAPTER  IL 

NoN -Pecuniary  Losses. 

1.  Physical  Pain 439 

2.  Inconvenience    442 

3.  Mental    Suffering 444 

I.     Consequent  upon  Physical  Injury 444 

II.     Antecedent  to  Physical  Injury 446 

III.    Apart  from  Physical  Injury 456 


CHAPTER  III. 

Pecuniabt  Condition"  of  Parties  as  Affecting  tiie  Allowance  op  Damages. 

1.  Of  PlalntifiC 478 

2.  Of  Defendant 482 

PART  VI. 

Damages  in  Certain  Specieic  Actions. 
chapter  i. 

In  Certain  Tort  Actions. 

1.  Affecting  the  Person 486 

2.  Affecting    Property 504 

I.     Realty 504 

II.     Personalty  510 

(A)  Conversion  and  Injury 510 

(B)  Detention  51& 


TABLE    OF   CONTENTS.  XVU 

Section  ^*S* 

3.  1'  rand  and  Dec^oit «'>-U 

4.  Misuse  of  Li'gal  Machinery ^-^ 


CHAPTER  II. 
In  Certain  Specific  Contract  Actions. 

1.  In  Those  Respecting  Services Jj2<) 

2.  In  Those  Kos]iecting  Personalty r>-il 

I.     Breaches  of  Warranty 541 

II.     Failure  to  Supply  Goods  or  to  Receive  Same 547 

3.  In  Those  Respecting  Realty 561.' 

I.     Vendor's  Failure  to  Give  Title 5(32 

(A)  Refusal  to  Convey 5012 

(B)  Breach  of  Covenants  of  Seisin  and  Quiet  Enjoyment. . . .  574 

(C)  Breach  of  Covenants  Against  Incumbrances 587 

II.     Vendee's  failure  to  Take  Title 591 

4.  Loan,  Indemnity,  and  Insurance  Contracts 593 

5.  Breach  of  Promise 602 

6.  Actions  Against  Carriers 007 

GrLB.DAM.— b 


TABLE   OF    CASES. 

[cases  cited  in  footnotes  ABE  INDICATED  BY  ITALICS.     WHERE  SMALL.  CAPITALS 
ABE   USED,   THE   CASE   IS   BEFERRED   TO   IN   THE   TEXT.] 


Page 

Adams  Exp.  Co.  v.  Egbert. 2G3 

Alberts  v.  Alberts 80 

Allen  V.  Fox 516 

Allison   V.  Chandler 249 

Allsop  V.  Allsop 447 

Amiable  Nancy,  The 246 

Ash  V.  Ladif  Ash 63 

Ashby  V.  White 4 

Asbdown  v.  Ingamells 596 

Astlej'  V.  Weldou 23 

Atkyus  V.  Kinnier 28 

Avery  v.  Ray 128 

Backhouse  v.  Bonomi 287 

Badger  v.  Titcomb 303 

Bagley  v.  Peddie 39 

Bagley  v.  Smith 255 

Bailey  v.  City  of  Centerville 238 

Bain  v.  Fothergill 564 

Baker  v.  Bolton 496 

Baker  v.  Drake 361 

Baldwin  v.  Bennett 533 

Ball  V.  Liney 401 

Baltimore  &  O.  R.  Co.  v.  Boyd..  507 
Baltimore  &  O.  R.  Co.  v.  Carr.. .  67 
Baltimore  &   P.   R.   Co.   v.   Fifth 

Baptist  Church 442 

Barrick  v.  Schiffer decker 508 

Barton  v.  Holmes 76 

Bateman  v.  Ryder 348 

Baxendale  v.  Loudon,  C.  &  D.  R. 

Co 433 

Beach  v.  Crain 305 

Beardmore  v.  Carrington 57 

Beck  V.  Dowell 478 

Beede  v.   Lamprey 378 

Bee  Printing  Co.  v.  Hichborn...  536 

Bennett  v.   Hyde 4S2 

Berkey   &   Gay   Furniture  Co.   v. 

Hascall    549 

Bernstein  v.  Bleech 423 

Berry  v.  Da  Costa 604 

Bethel  v.  Salem  Imp.  Co 593 

Blanchard  v.    Ely 246 

Bollcs  Wooden  ware  Co.  v.  United 

States    392 

Boom  Co.  v.  Patterson 355 

Gilb.Dam.  (xix) 


Page 
Booth  V.  Spuyten  Duyvll  Rolling 

Mill  Co 203 

Borries  v.  Hutchinson 201 

Bosch  V.  Burlington  d  M.  R.  R. 

Co 173 

BoscH  V.  Railroad  Co 179 

Bowers    v.    Mississippi   &    R.    R, 

Boom   Co 302 

Bowman  v.   Neely 421 

Braun  v.  Craven 455 

Brewster  v.  Wakefield 418 

Briggs  V.  Brushabcr 520 

Brigham  v.  Carlisle 256 

Britton  v.  Turner 528 

Broadwell  v.  Paradice 327 

Brooks  V.  Black 5S2 

Brown  v.  Chicago,  M.  &  St.  P.  R. 

Co 181 

Brown  v.  Cummings 278 

Brown  v.   Muller 322 

B  unting  v.  Hog  sett 142 

Burnett  v.  Simpkins 141 

Canning  v.  Williamstoicn 448 

Carpenter  v.  American  Building  & 

Loan  Ass'n 399 

Carpenter  v.   Dresser 397 

Cary  v.  Gruman 544 

Chamberlain  v.  City    of    Oshkosh  169 

Chamberlain  v.  Parker 16 

Chappell  V.  Ellis 473 

Cliellis   V.   Chapman 483 

Chicago,  K.   &    TF.   R.   R.    Co.   v. 

Drake 70 

Chinery  v.  Viall 325 

City  of  Chicago  v.  Langlass 125 

Clark  V.  City  of  New  York 539 

Clark  V.  Pinney    357 

Clark  V.  Zeigler   5S9 

Collard  v.   Southeastern  R.  Co...  6(i7 

Connell  v.  Western  Union  Tel.  Co.  4rKS 

Cook  V.  Beale 56 

Coolidge  v.  Neat 606 

Cory  v.  Iron  Works  Co 206 

Cory  V.  Thames  Ironworks  &  Ship- 
building  Co 192 

Craker  v.  Chicago  &  N.  W.  R.  Co.  IIS 


XX 


TABLE    OF  "CASES. 


.  Page 

Cunningham  t.  Dorsey 537 

Currier  v.  Sivan 131 

Cutter  V.  Powell 527 

Darley  Main  Colliery  Co.  v.  Mitch- 
ell      286 

Day  V.  Woodworth 88 

Delves  v.  Wyer 63 

Demarest  v.  Little 501 

Dennis  v.  Maxfield 272 

Denny   v.    New   Yoek   Cent.   R. 

Co 171 

Denver  &  R.  G.  R.  Co.  v.  Spencer  494 

Devereux  v.   Buckley 613 

Deverill  v.  Burnell 48 

Dimock  v.  United  States  Bank..  368 

Dixon  V.   Clow 11 

Doe  V.  FilUter 87 

Doster  v.   Brown 537 

Draper  v.  Baker 78 

Duhuque   Wood   d   Coal  Ass'n  v. 

City  of  Duhuque 173 

Dubuque  Wood  &  Coal  Ass'n  v. 

City  of  Dubuque 165,  179 

Dwight  V.  Elmira,  C.  &  N.  R.  Co.  504 

Baton  V.  Langley 381 

Edmondson  v.   Nuttall 395 

Elbinger  -  Actien  -  Gesellschaft     v. 

Armstrong    201 

Ellis  V.  Hilton 238 

Ellsworth  V.  Chicago,  B.  &  Q.  R. 

Co 236 

EmUen  v.  Myers 78 

Fail  &  Miles  v.  McRee 319 

Farrand  v.  Aldrich 79 

Fay  V.  Parker 124 

Fay  v.  Parkee 118 

Fetter  v.  Beale 291 

Filer  v.  New  York  Cent.  R.  Co..  291 

Fish  V.  Folley 307 

Flanagan  v.  Womack 90 

Flureau  v.  Thornhill 562 

Forsyth  v.  Wells 376 

Folsom  V.  Apple  River  Log  Driv- 
ing   Co 509 

Foster  v.  Rodgers 339 

Eraser  v.  Berkeley    126 

Eraser  v.  Little    44 

Fuchs  V.  Kocrner 232 

Fullam  V.  Stearns 15 

Gainsford  v.  Carroll 547 

Galigher  v.  Jones 369 

Gaskins  v.  Davis 389 

Georgia  v.  Kepford 164 

Gilbert  v.  Berkinshaw 60 

Gillett  V.  Western  R,  Corp 516 

Gilman  v.  Noyes 150 

Glaspy  V.  Cabot 342 

Goddard  v.  Grand  Trunk  R.   Co. 
of   Canada 101 


Page 

Goldsmith's  Adm'r  v.  Joy 132 

Goodhart  v.   Pennsylvania  R.  Co.  439 

Gooding  v.   Shea 330 

Gore  V.  Brazier 581 

Goslin  V.  Corry 291 

Grant  v.  Willcy 606 

Grebert-Borgnis  v.  J.  &  W.  Nu- 
gent       197 

Greenvault  v.  Davis 584 

Green-Wheeler  Shoe  Co.  v.  Chica- 
go, R.  I.  &  P.  R.  Co 171 

GrifBn  v.  Colver 245 

Griggs  V.  Fleckenstein 156 

Gronan  v.   Kukkuck 131 

Grose  v.   Hennessey 542 

Guetzkow  Bros.  Co.  v.  Andrews.  .  207 
Guille  V.  Swan 168,  189 

Hadley  v.  Baxendale 189 

Hall  V.  Western  Union  Tel.  Co. .  261 
Hamlin  v.  Great  Northern  R.  Co.     64 

Hammer  v.  Schoenf elder 211 

Hammond  v.  Haunin 572 

Hammond  &  Co.  v.  Bussey 201 

Hand  v.  Armstrong 419 

Harrington  v.  Murphy 587 

Harris  v.   Panama  R.  Co 341 

Hart  v.  Charlotte,  C.  &  A.  R.  Co.  427 
Harvey  v.  Connecticut  &  P.  R.  Co.  610 

Hawkins  v.  Sciet 63 

Hawley  v.  Hodge 425 

Hay  ward  v.  Leonard 534 

Heddles  v.  Chicago  &  N.  W.  R.  Co.  445 

Hendrickson  v.   Back 541 

Hewlett  V.  George 475 

Hichhorn,  Mack  &  Co.  v.  Bradley  258 

Hill  v.  Winsor 184 

Hohhs  V.  Railicay  Co 187 

HocHSTER  V.  De  Latoub 227,  316 

Hoey  V.  Felton.  ..r 167 

Hopkins  v.  Grazebrook 563 

Hopkins  v.  Lee  568 

Hopkins  v.   Railroad  Co 118 

Home  V.  Midland  R.  Co 195 

Hosmer  v.  Wilson 560 

Hotchkiss  V.   Oliphant 143 

Howard  v.  Daly   313 

Howard  v.  Lovegrove   434 

Huckle  V.  Money 85 

Hurd  V.  Hubbell 513 

Illinois  Cent.  R.  Co.  v.  Cobb,  Chris- 
ty &  Co 225 

Illinois  Cent.  R.  Co.  v.  Southern 
Seating  &  Cabinet  Co 61] 

Illinois  Mut.  Fire  Ins.  Co.  v.  An- 
des Ins.  Co 601 

Indiana,  B.  &  TF.  R.  R.  Co.  v. 
Eherle    303 

Ingram  v.  Rankin 372 

Inhabitants  of  Westfield  v.  Mayo  435 

Irwin  V.  Dearman 489 


TABLE   OF   CASES. 


XXI 


Page 

Jacksonville,  T.  &  K.  W.  R.  Co. 
V.   Peninsular  Land,  Transp.  & 

Mfg.   Co 349 

Jaquith  v.  ITiulson 29 

Jetvett  V.  Whitney 13 

Johnson  v.  Alien 340 

Johnson  v.  Smith  482 

Jones  V.  Kins: 20 

Joseph     Schlitz    Brewing    Co.    v. 

Compton    299 

Josling  V.  Irvine 548 

Kadish  v.  Young 225 

Kaley  v.  Shed * 398 

Kansas  Pac.  Ry.  v.  Mihlman....  292 

Keeble  v,  Keeble 35 

Kemble  v.  Farron 2(1 

Kendrick  v.  McCrary 490 

Ki^  V.  Youmans 131 

KlFF    V.    YOTJMANS 133 

Kountz  V.  Kirkpatrick 3.36 

Krug  V.  Pitass 122 

Laidlaio  v.  Sage 168 

Laird  v.  Pim 591 

Lake  Shore  &  M.  S.  R.  Co.  v.  Pren- 
tice    112 

Lamb   v.  Walker 287 

Larson  v.  Chase 458. 

Lawrence  v.  Hagerman   524 

Lawrence  V.  Porter   222 

Lazarus  v.  Ely 399 

Lcame  v.  BroAi 148 

Leeds  V.  Metropolitan  Gaslight  Co.     18 

Lee  v.  Woolsey 129 

Leonard   v.    New   York,    A.    &    B. 

Electro-Magnetic  Tel.  Co 201 

Lewis  V.  Flint  &  P.  M.  R.  Co...   177 

Liddell  v.  Chidester 319 

Limhurg  v.  German  Fire  Ins.  Co. 

of  Peoria 70 

Liming  v.  Illinois  Cent  R.  Co...   106 

Linford  v.  Lake 131 

Loder  v.  Kokule 542 

Loeser  v.   Humphrey 236 

Loker  v.  Damon 221 

Long  V.  Booe 492 

Loiiisv-iUe  tC-  A''.  R.  Co.  v.  Ballard    90 
Louisville  &  N.  R.  Co.  v.  Wallace  416 

I^owe  V.  Turpie 594 

Lucas  V.  Flinn 79 

Lund  V.  Tyler 274 

Lynch  v.  Knight    446 

Lynch  v.  Nurdin    189 

Lytton  V.  Baird 522 


McMullen  v.  Dickinson  Co. . . 

McXamara  v.  Village  of  Clinton- 
ville    

McPeok  V.  Western  Union  Tel.  Co. 

Mahoney  v.  Bel  ford 

Manix  v.  Maloney 

Margraf  v.   Muir 

Marsh  v.   McPherson 

Martin  v.  Porter 

Marzetti  v.  Williams 

Masterton  v.   City  of  Brooklyn.. 

Memphis  &  C.  R.  Co.  v.  Whitfield 

Mentzer  v.  Western  Union  Tel.  Co. 

Merest  v.  Harvey 

Merrills  v.  Tariff  Mfg.  Co 

Merrill  v.  Western  Union  Tel.  Co. 

Metallic  Compression  Co.  v. 
Railroad  Co 

Miller  v.  Trustees  of  Mariner's 
Church    63, 

Milwaukee  &  St  P.  R.  Co.  v.  Kel- 
logg   

Mitchell  V.  Burch 

Mitchell  V.  Rochester  R.  Co 

Mitchell  V.  Stanley    

Monmouth  Park  Ass'n  v.  Wallis 
Iron   Works 

Montana  R.  Co.  v.  Warren 

Morely  v.  Dunbar 

Morgan  v.   Southern  Pac.  Co.... 

Mors  le  Blanch  v.   Wilson 

Moyer  v.  Gordon 

Mullett  V.  Mason 

Murphy  v.  City  of  Fond  du   Lac 

Murphy  v.  Eobbs  


Pago 
310 


175 

267 

476 

76 

570 

.5.-)! 

374 

7 

241 

445 

460 

80 

80 

19 


180 
220 

145 

425 
451 

587 

37 

354 
135 
499 
434 
4.-S 
211 
394 
124 


McDonald  v.   Snelling 1.54 

McGregor  v.  Kilgore 352 

McGuinness  v.   Whalen 592 

Machine  Co.   v.   Bryson 2.")9 

McHose  V.  Fulmer 212 

McMahon  v.  City  of  Dubuque. . .  346 
McM AHON  V.  Field 175 


National  Copper  Co.  v.  Minnesota 

Min.   Co 280 

New  Jersey  Exp.  Co.  v.  Nichols. .  279 

Newman  v.  Stein 1.18 

Noble  V.  Arnold 429 

Oelrichs  v.   Spain 428 

Osmun  V.  Winters 81 

Palmer  v.   Crook 1 43 

Parker  v.  Russell 309 

Park  V.  Richardson  &  Boynton  Co.  545 

Paul  V.   Slason 13 

Pearson  v.  Williams'  Adm'rs 51 

Peek  V.  Derry 521 

Pennsylvania  Co.  v.  Roy 480 

Pennsylvania  R.  Co.  v.  Kerb.  .   14(> 

Perrott  v.  Shearer 403 

Peterson   v.    Western    Union   Tel. 

Co 71 

Phillips  V.  London  &  S.  W.  R.  Co.     74 

Phillips  V.  Reichert 583 

Philpot  V.  Taylor , 432 

Pinkerton  v.  Manchester  &  L.  R. 

R 370 

Pitcher  v.  Livingston 579 


XXll 


TABLE    OF    CASES. 


Page 

Port  V.  Jackson 597 

Potter  V.  Mellcn 16 

Price  V.   Severn 61 

Prime  v.  Eastwood 475 

Primrose  v.   Western   Union   Tel. 

Co 212 

Pumpelly  v.  Ptielps 569 

Railway  Co.   v.   Dunn 118 

Randall  v.  Hazelton    1 

Randall  v.  Rapcr 200 

Ransom  v.  New  York  &  E.  R.  Co.     05 
Redmond  v.  American  Mfg.  Co. .  518 

Reid  V.  Fairbanks   510 

Reid  V.  Rensselaer  Glass  Factory  406 

Remelee  v.  Hall 308 

Retan  v.  Lake  Shore  &  M.  S.  R. 

Co 70 

Richards  v.  Iowa  Homestead  Co.  586 

Richmond  Gas  Co.  v.  Baker 487 

Richmond  &  D.  R.  Co.  v.  Allison  274 

Rigney  v.  City  of  Chicago 3 

Ring  V.  City  of  Cohoes 158 

Rohinson  v.  Bland 409 

RosiNSON  V.  Town  of  Watjpaca    74 

Roetm  V.  Horst 323 

Rogers  v.  Parham 532 

Rolph  V.  Crouch 437 

Roper  V.  Johnson 320 

Ross  V.  Leggett 486 

Roy  V.  Duke  of  Beaufort 23 

Russell  V.  Palmer 60 

Ryan  v.  New  York  Cent.  R.  Co.  146 

San   Antonio  &   A.    P.   R.   Co.    v. 

Long 496 

Sanders  v.   Stuart 215 

SchefCer  v.  Railroad  Co 163 

Schumaker  v.  St.  Paul  &  D.  R.  Co.  187 

Scott  V.  Rogers 360 

Scott  V.  Sheplverd 148 

Sears  v.  Lvons 87 

Seely  v.   Alden 329 

Seger  v.  Town  of  Barkhamsted. .  444 

Sharp  V.  Powell 168 

Shawhan  v.  Van  Nest 552 

Sheik  V.  Hohson 124 

Shepherd  v.   Johnson 356 

Sherman  Center  Town  Co.  v.  Leon- 
ard      266 

Sherrod  v.  Langdon 209 

Sickra  v.   Small 136 

Silsbury  v.  McGoon 394 

Sloane  v.  Southern  California  R. 

Co 449 

Sloman  v.  Walter 24 

Smeed  v.  Foord 199 

Smith  V.  Bagwell  97 

Smith  V.  Bergengren 53 

Smith  V.  Griffith    334 

Smith  V.  Thackerah    12 

Smith  V.  Woodfine  602 

Southard  v.  Rcxford 80 


Page 
Spokane  Truck  &  Dray  Co.  v.  Hoe- 

fer  93 

Spring  V.  Russell 2 

Staats  V.  Ten  Eyck's  Ex'rs 574 

Stark  V.  Parker 52(5 

State  ex  rel.  Lowery  v.  Davis...     19 

Stevens  v.  Yale 270 

Stiles  V.  White 521 

Stodghill  V.  Chicago,  B.  &  Q.  R. 

Co 296 

Stoudenmire  v.  De  Bardelaben.. .  506 

Stringfield  v.  Hirsch 4.30 

Sullivan  v.  McMillan 2.30 

Sutherland  v.  Wyer 228 

Swift  V.  Dickerman 139 

Tathwell  v.  City  of  Cedar  Rapids  72 
Telegraph  Co.  v.  Gildersleve  213 
Tennessee  Mfg.  Co.  v.  James. ...     39 

Terry  v.  Jcioctt 405 

Thompson  v.  Boston  &  M.  R.  R. .  415 

Thoms  V.  Dingley 546 

Todd  V.  Gamble 555 

Townsend  v.  Hughes 55 

Trigg  V.  Clay 344 

Tufts  V.  Bennett 552 

Turner  v.  Great  Northern  R.  Co.  443 
Turrell  v.  Jackson 332 

Uline  V.  Railroad  Co 300 

United  States  v.   Behan 422 

United  States  Tel.   Co.  v.   Gilder- 
sleve     220 

Upstone  V.  Weir 538 

Valentine  v.  Wheeler 599 

Vanderpool  v.  Richardson 481 

Vamham  v.  City  of  Council  Bluffs  404 

Vicars  V.  Wilcocks 164 

Victorian  Rys.  Com'rs  v.  Coultas  448 
Vosburg  V.  Putney 173 

Ward  V.  Blackwood 83 

Ward's  Central  &  Pacific  Lake  Co. 

V.    Elkins 240 

Wartman  v.   Swindell 15 

Warwick  v.  Foulkes 80 

Watkinson  v.   Laughton 600 

Watson  V.  Dilts    4.53 

Watson  V.  Van  Meter 22 

Webb  V.  Portland  Mfg.  Co 8 

Wehle  V.  Haviland 514 

Welch  v.  Ware 68 

Weller  v.  Baker 5 

Wells  V.  Watling 6 

Western  Ry.  of  Alabama  v.  Mutch  160 
Wpptern  T'nion  Tel.  Co.  v.  Hall..  261 
Western  Union  Tel.  Co.  v.  Wilson  2W 

White  v.  Miller    269.  409 

White  V.  Solomon    557 

White  V.  Webb    326 

White  V.  Yawkey  387 

Whitehouse  V.  Fellowes 283 


TABLE   OF  CASES. 


XXUi 


Page 
Whitely  v.  Mississippi  River  W.  P. 

&  B.  Co 405 

Whitraarsh  v.  Littlefield 2r!3 

Wichita  &  W.  K.  Co.  v.  Beebe.  . .   2S9 

Willsou  V.  City  of  Baltimore 39 

Wilson  V.  City  of  Troy 413 

Wilson  V.  Neirport  Dock  Co 187 

Wittirh  V.  (rNeal 432 

Wolf  V.  Studebaker   234 

Wolf  V.  Triukle   456 


Page 

Wood  V.  Pennsylvania  R.  Co 148 

Wood  V.  Waud   11 

Wright  V.  Bank  of  the  Metropolis  3G4 

Wright  V.  Mulvaney   271 

Wyman  v.  Robinson 47 

Yates  V.  Whyte 401 

Yorton  v.  Milwaukee,  L.  S.  &  W. 
R.   Co 234 


CASES  ON  DAMAGES. 


PART  I. 
DAMNUM  ABSQUE  INJURIA. 


RANDALL  v.  HAZELTON  et  al. 

(Supreme  Judicial  Court  of  Massachusetts,  1866.     12  Allen,  412.) 

The  declaration  alleged,  in  substance,  that  the  plaintiff  owned  an 
estate  subject  to  a  mortgage  given  by  a  former  owner,  containing  a 
power  of  sale  for  nonpayment  of  interest;  that  the  mortgagees  in- 
formed plaintiff  that  they  did  not  want  the  money  paid  when  due,  and 
he  therefore  made  no  provision  to  raise  the  money,  but  that  the  de- 
fendants secured  an  assignment  of  the  mortgage  by  means  of  false 
representations  as  to  plaintiff's  desires,  and  proceeded  to  make  a  sale 
under  the  power  granted  in  the  mortgage ;  that  plaintiff  did  not  know 
of  the  sale  until  after  it  occurred,  and  was  put  to  great  expense  in  ob- 
taining a  deed  of  the  estate  and  in  regaining  title. 

Colt,  j^i  *  *  *  'j^^g  question  raised  by  the  demurrer  is 
whether,  upon  the  facts  charged,  the  action  can  be  maintained.  It  is 
an  ancient  and  well  established  legal  principle  that  fraud  without  dam- 
age or  damage  without  fraud  gives  no  cause  of  action;  yet  when  the 
two  do  concur,  there  an  action  lieth.  Baily  v.  Merrell,  3  Bulst.  95. 
Actions  like  the  one  under  consideration  are  all  based  upon  this  prop- 
osition ;  but  it  cannot  safely  be  applied  as  a  test  by  which  to  deter- 
mine whether  the  facts  in  any  case  constitute  an  actionable  wrong,  with- 
out keeping  in  mind  the  meaning  which  the  law,  by  a  series  of  ju- 
dicial decisions,  has  attached  to  the  terms  used.  It  is  well  settled  that 
every  falsehood  is  not  necessarily  a  legal  fraud  or  false  representa- 
tion. It  is  said  that  a  false  representation  is  an  affirmation  of  that 
which  the  party  knows  to  be  false  or  does  not  know  to  be  true,  to  an- 
other's loss  or  his  own  gain.  Lobdell  v.  Baker,  1  IMetc.  201,  35  Am. 
Dec.  358.  So  in  reference  to  the  term  damage,  the  law  is  that  it  must 
be  a  loss  brought  upon  the  party  complaining  by  a  violation  of  some 

1  Tart  of  the  opinion  Is  omitted,  and  the  statement  of  facts  is  rewritten. 
Gilb.Dam. — 1 


2  DAMNUM   ABSQUE   INJURIA.  (Part  1 

legal  right,  or  it  will  be  considered  as  merely  damnum  absque  injuria. 
There  is  a  large  class  of  moral  rights  and  duties,  sometimes  called 
imperfect  rights  and  obligations,  which  the  law  does  not  attempt  to  en- 
force or  protect.  The  refusal  or  discontinuance  of  a  favor  gives  no 
cause  of  action.  If  one  trusts  to  a  mere  gratuitous  promise  of  favor 
from  another  and  is  disappointed,  the  law  will  not  protect  him  from  the 
consequence  of  his  undue  confidence,  nor  encourage  carelessness  or 
want  of  prudence  in  affairs.  Damages  can  never  be  recovered  where 
they  result  from  a  lawful  act  of  the  defendant.  The  exercise  of  a 
right  conferred  by  a  valid  contract,  in  the  manner  provided  by  its 
terms,  cannot  be  the  ground  of  an  action.  The  law  will  not  inquire 
into  the  motives  of  the  party  exercising  such  right,  however  un- 
friendly and  selfish.  The  trouble  and  expense  and  risk  of  loss  ought 
to  and  must  be  presumed  to  have  been  contemplated  when  the  contract 
was  entered  into.  The  foreclosure  of  a  mortgage  under  a  power  of 
sale,  for  example,  may  be  made  at  such  time  and  under  such  circum- 
stances as  to  cause  great  distress  and  sacrifice  to  the  mortgagor;  but, 
whatever  the  motive  of  the  mortgagee,  no  remedy  is  afforded  for  his  op- 
pressive conduct,  if  the  requirements  of  the  contract  have  been  ful- 
filled.    *     *     * 

Demurrer  sustained. 


SPRING  V.  RUSSELL  et  al. 

(Supreme  Court  of  Maine,  1831.     7  Me.  273.) 

Mellen,  C.  J,2  *  *  *  Damnum  absque  injuria  is  not  a  le- 
gal novelty.  It  does  not  necessarily  follow  that  because  a  plaintiff 
may  have  sustained  a  serious  injury  in  his  property,  consequent  upon 
the  voluntary  acts  of  a  defendant,  that,  therefore,  he  has  a  right  to 
recover  damages  for  that  injury.  Some  acts  may  be  justified  by  an 
express  provision  of  law ;  or  the  damage  may  have  arisen  as  the  con- 
sequence of  those  acts  which  others  might  lawfully  do  in  the  enjoy- 
ment and  exercise  of  their  own  rights  and  management  of  their  own 
business;  or  it  may  have  resulted  from  the  application  of  those  prin- 
ciples by  which  the  general  good  is  to  be  consulted  and  promoted, 
though  in  many  respects  operating  unfavorably  to  the  interest  of  in- 
dividuals in  society.  Other  instances  might  be  stated.  Such  is,  and 
must  be,  the  law  of  society.     *     *     *  a 

2  Part  of  the  opinion  is  omitted. 

8  For  instances  of  tlie  application  of  the  rule,  see  Surocco  v.  Geary,  3  Cal. 
69,  58  Am.  Dec.  385  (1853),  destruction  of  property  to  prevent  spread  of  tire ; 
Wilson  V.  Mayor  of  New  York,  1  Denio  (N.  Y.)  595,  43  Am.  Dec.  719  (1845), 
erection  of  public  works;  Rowland  v.  Vincent,  10  Mete.  (Mass.)  371,  43  Am. 
Dec.  442  (1845),  pure  accident;  Mahan  v.  Brown,  13  Wend.  (N.  Y.)  261,  28 
Am.  Dec.  461  (1835),  obstruction  of  lights,  American  doctrine;  Penn  Coal  Co. 


Part  1)  DAMNUM   ABSQUE   INJURIA.  3 

V.  Sanderson,  113  Pa.  126,  6  Atl.  453,  57  Am.  Rep.  445  (1886),  lawful  use  of 
one's  property;  Jacob.son  v.  Poindexter,  42  Ark.  07  (iys:i),  loss  in  det'enclnifr 
an  action  brought  without  malice ;  Macomber  v.  Nichols,  34  Mich.  212,  22 
Am.  Kep.  522  (1876),  reasonable  use  of  highway ;  Roberson  v.  Rochester  Fold- 
ing Box  Co.,  171  N.  T.  538,  64  N.  E.  442,  59  L.  R.  A.  478.  89  Am.  St.  Rep. 
828  (1902),  privacy;  Rlgnev  v.  Citv  of  Chicago.  102  111.  64  (1881),  access  to  real- 
ty; Pryce  v.  Belcher,  3  C.  B.  58  (1846),  4  C.  B.  866  (1847),  political;  Davis 
V.  Jenkins,  11  Mees.  &  W.  745  (1843),  erroneous  suit  at  law;  Churchill  v. 
Siggers.  3  El.  &  Bl.  929  (1854);  Savile  v.  Roberts,  1  Ld.  Raym.  374  (1698). 
malice  without  harm;  Eager  v.  Grimwood,  1  Exch.  61  (1847),  seduction  with- 
out proof  of  services;  Hopkins  v.  G.  N.  R.  R.  Co.,  2  Q.  B.  Dlv.  224  (1877), 
competition.    Aad  compare  the  cases  herein  under  "nominal  damages." 


PART  ii; 

NOMINAL  DAMAGES. 


ASHBY  V.  WHITE. 

(Court  of  Queen's  Bench,  1703.    2  Ld.  Raym.  938.) 

Holt,  C.  J.*  The  single  question  in  this  case  is,  Whether  if  a  free 
burgess  of  a  corporation,  who  has  an  undoubted  right  to  give  his  vote 
in  the  election  of  a  burgess  to  serve  in  parliament,  be  refused  and  hin- 
der'd  to  give  it  by  the  officer,  if  an  action  on  the  case  will  lie  against 
such  officer.     *     *     * 

I  am  of  opinion,  that  this  action  on  the  case  is  a  proper  action.  My 
brother  Powell  indeed  thinks,  that  an  action  upon  the  case  is  not 
maintainable,  because  here  is  no  hurt  or  damage  to  the  plaintiff;  but 
surely  every  injury  imports  a  damage,  though  it  does  not  cost  the 
party  one  farthing,  and  it  is  impossible  to  prove  the  contrary;  for  a 
damage  is  not  merely  pecuniary,  but  an  injury  imports  a  damage,  when 
a  man  is  thereby  hindered  of  his  right.  As  in  an  action  for  slander- 
ous words,  though  a  man  does  not  lose  a  penny  by  reason  of  the 
speaking  them,  yet  he  shall  have  an  action.  So  if  a  man  gives  another 
a  cuff  on  the  ear,  though  it  cost  him  nothing,  no  not  so  much  as  a 
little  diachylon,  yet  he  shall  have  his  action,  for  it  is  a  personal  injury. 
So  a  man  shall  have  an  action  against  another  for  riding  over  his 
ground,  though  it  do  him  no  damage;  for  it  is  an  invasion  of  his 
property,  and  the  other  has  no  right  to  come  there.  And  in  these 
cases  the  action  is  brought  vi  et  armis.  But  for  invasion  of  another's 
franchise,  trespass  vi  et  armis  does  not  lie,  but  an  action  of  tres- 
pass on  the  case ;  as  where  a  man  has  retorna  brevium,  he  shall  have 
an  action  against  any  one  who  enters  and  invades  his  franchise,  though 
he  lose  nothing  by  it.  So  here  in  the  principal  case,  the  plaintiff  is 
obstructed  of  his  right,  and  shall  therefore  have  his  action.  And  it  is 
no  objection  to  say,  that  it  will  occasion  multiplicity  of  actions;  for  if 
men  will  multiply  injuries,  actions  must  be  multiplied  too;  for  every 
man  that  is  injured  ought  to  have  his  recompense.  Suppose  the  de- 
fendant had  beat  forty  or  fifty  men,  the  damage  done  to  each  one  is 
peculiar  to  himself,  and  he  shall  have  his  action.  So  if  many  persons 
receive  a  private  injury  by  a  publick  nuisance,  every  one  shall  have 
his  action,  as  is  agreed  in  Williams's  Case,  5  Co.  73a,  and  Westbury 
and  Powell,  Co.  Li.  56a.  Indeed  where  many  men  are  offended  by 
one  particular  act,  there  they  must  proceed  by  way  of  indictment,  and 

1  Part  of  the  opinion  is  omitted. 

(4) 


Part  2)  NOMINAL  DAMAGES.  " 

not  of  action ;  for  in  that  case  the  law  will  not  multiply  actions.  But 
it  is  otherwise,  when  one  man  only  is  offended  by  that  act,  he  shall 
have  his  action ;  as  if  a  man  dig  a  pit  in  a  common,  every  con-imoner 
shall  have  an  action  on  the  case,  per  quod  communiam  suam  in  tarn 
amplo  modo  habere  non  potuit ;  for  every  commoner  has  a  several 
right.  But  it  would  be  otherwise  if  a  man  dig  a  pit  in  a  highway, 
every  passenger  shall  not  bring  his  action,  but  the  party  shall  be  pun- 
ished by  indictment;  because  the  injury  is  general  and  common  to 
all  that  pass.  But  when  the  injury  is  particular  and  peculiar  to  every 
man,  each  man  shall  have  his  action.  In  the  case  of  Turner  against 
Sterling  the  plaintiff  was  not  elected,  he  could  not  give  in  evidence 
the  loss  of  his  place  as  a  damage,  for  he  was  never  in  it ;  but  tlie  gist 
of  the  action  is,  that  the  plaintiff  having  a  right  to  stand  for  the  place, 
and  it  being  difficult  to  determine  who  had  the  majority,  he  had  there- 
fore a  right  to  demand  a  poll,  and  the  defendant  by  denying  it  was 
liable  to  an  action.  If  publick  officers  will  infringe  men's  rights,  they 
ought  to  pay  greater  damages  than  other  men,  to  deter  and  hinder 
other  officers  from  the  like  offenses.  So  the  case  of  Hunt  and  Do\y- 
man,  2  Cro.  478,  where  an  action  on  the  case  is  brought  by  him  in 
reversion  against  lessee  for  years,  for  refusing  to  let  him  enter  into 
the  house,  to  see  whether  any  waste  was  committed.  In  that  case  the 
action  is  not  founded  on  the  damage,  for  it  did  not  appear  that  any 
waste  was  done,  but  because  the  plaintiff  was  hindered  in  the  enjoy- 
ment of  his  right,  and  surely  no  other  reason  for  the  action  can  be  sup- 
pos'd.    *     *    * 


WELLER  v.  BAKER. 

(C!ourt  of  Common  Pleas,  1769.     2  Wils.  414.) 

This  was  an  action  of  trespass  on  the  case  brought  against  the  de- 
fendants for  exercising  without  appointment  the  business  of  a  dip- 
per at  certain  medicinal  springs,  called  Tunbridge  Wells,  at  which  the 
plaintiffs  were  officially  named  dippers.  The  plaintiff  received  as  com- 
pensation only  such  sums  as  persons  resorting  to  the  wells  chose  to 
give  them  for  their  proffered  services. 

CuRiA.^  *  *  *  Several  objections  were  made  by  the  counsel 
for  the  defendant;  1st,  It  was  said,  that  there  must  be  both  an  injury 
and  a  damage  done  to,  and  sustained  by  the  plaintiffs,  to  support  an 
action  upon  the  case;  in  answer  to  this,  we  say  here  is  both  an  injury 
and  a  damage;  an  injury,  by  the  defendant's  disturbing  the  dippers 
in  the  exercise  of  their  right  or  employment,  and  a  real  damage  in  de- 
priving them  of  some  gratuity  which  they  would  otherwise  have  re- 
ceived, perhaps  more  than  they  might  truly  deserve  for  their  labour 
and  pains;    besides  an  action  upon  the  case  will  lie  for  a  possibility 

2  Tart  of  the  ojnnion  is  omitted,  ami  the  statement  of  facts  is  rewrilten. 


6  NOMINAL  DAMAGES.  (Part  2 

of  a  damage  and  injury;  as  for  persuading  A  not  to  come  and  sell  his 
wares  at  the  market  of  B,  the  lord  of  the  market  may  have  this  action. 

2dly,  It  was  said  that  this  is  not  such  an  office  or  employment  for 
which  an  assize  would  lie,  and  therefore  this  action  will  not  lie;  in 
answer,  we  think  this  may  be  an  employment  for  life  determinable  up- 
on misbehaviour ;  and  if  so,  it  is  a  freehold,  has  a  certain  place  where 
it  is  to  be  exercised,  and  may  be  put  in  view  to  the  recognitors ;  how- 
ever we  think  it  such  an  interest  or  employment  that  an  action  upon 
the  case  will  lie  against  a  stranger  for  a  disturbance  therein.     *     *     * 


WELLS  V.  WATLING. 

(Court  of  Common  Pleas,  1778.     2  W.  Bl.  1233.) 

Action  on  the  case,  tried  at  last  Norwich  Assizes,  and  verdict  for 
the  plaintiff,  damages  5s.,  subject  to  the  opinion  of  the  court.  The 
plaintiff  declared  on  his  possession  of  a  messuage  and  lands  in  Ban- 
ham,  for  which  he  was  entitled  to  common  of  pasture  on  Banham 
Heath  for  his  sheep  levant  and  couchant,  but  that  the  defendant,  on 
the  1st  of  January,  1777,  and  afterwards,  wrongfully  turned  3000 
sheep  thereon,  whereby  the  plaintiff  could  not  enjoy  the  benefit  of  his 
common  in  so  ample  a  manner,  etc.  There  was  a  second  count,  in 
which  the  plaintiif  prescribed  for  his  said  right  of  common,  and  a 
third  and  fourth,  in  which  the  defendant  was  charged  with  surcharg- 
ing the  common  with  more  sheep  than  he  ought  to  have  done.  On 
Not  Guilty,  and  issue  thereon,  the  plaintiff  proved,  that  his  farm  con- 
sisted of  300  acres  in  Banham;  that  Banham  Heath  consisted  of  2000 
acres,  of  which  50  lay  in  the  parish  of  Winfarthing,  and  the  rest  in 
Banham;  that  the  defendant's  farm  consisted  of  32  acres  in  Win- 
farthing; that  the  plaintiff,  and  those  whose  estate  he  had,  used  to 
turn  on  from  100  to  300  sheep  every  year,  but  there  was  no  evidence 
given,  whether  he  turned  on  any  in  1777 ;  that  in  1777  the  defendant 
turned  on  above  100  sheep,  besides  lambs,  on  the  Heath. 

Walker,  for  the  defendant,  argued,  that  the  plaintiff  could  not  main- 
tain this  action  for  an  injury,  because  he  had  suffered  no  damage;  as 
it  did  not  appear  that  he  turned  any  sheep  on  the  common  that  year. 
That  the  action  of  case  does  not  lie  for  the  mere  act  of  turning  on  the 
sheep,  but  for  the  injurious  consequences  (if  any)  of  turning  them 
on.  If  water  is  diverted  from  my  mill  for  ten  years,  and  I  do  not 
use  the  mill  during  that  whole  time,  no  action  lies.  He  cited,  for  this, 
Robert  Mary's  Case,  9  Co.  113a;  Woolton  v.  Salter,  3  Lev.  104; 
Jackson  v.  Laverack,  Viner,  Common,  (H.  a),  pi.  43.     *     *     *  ^ 

Blackstone,  J.  I  always  have  understood,  that  an  action  on  the 
case  lay  by  one  commoner  against  another  for  a  great  and  exorbi- 
tant surcharge.    It  has  been  said  by  one  of  the  counsel  that  the  plain- 

3  Part  of  the  report  of  the  case  is  omitted. 


^.uv*.. .  fui±^;^ 


Part  2)  NOMINAL  DAMAGES.  7 

tiff  must  prove  a  serious  injury,  relying  on  the  words  of  Mr.  J.  Black- 
stone,  But  the  expression  used  by  that  Judge  does  not  warrani.  such  a 
construction;  for  it  must  be  taken  with  a  reference  to  the  case  then 
before  him,  which  is  proved  to  be  the  present  case.  It  amounts  to  a 
kind  of  disseisin,  and  probably  was  so  in  the  present  case;  for  when 
the  defendant  had  so  grossly  surcharged,  the  profit  of  the  common  was 
gone,  and  it  was  in  vain  for  the  plaintiff  to  turn  in  afterwards.  Any 
act  that  will  ground  a  per  quod,  and  lessen  the  profit  of  the  common, 
will  support  an  action  against  the  commoner.  Any  act  that  totally 
destroys  the  herbage,  as  feeding  a  common  with  rabbits,  will  support 
an  action  against  the  lord.  Nor  do  I  see  anything  singular,  or  repug- 
nant to  this,  in  the  doctrine  of  Mary's  Case.  The  commoner,  says 
the  book,  must  shew  that  "proficuum  communias  suae  per  totum  id  tem- 
pus  amisit" ;  or,  "that  he  could  not  have  his  common  in  so  beneficial 
a  manner  as  before."  It  is  not  necessary  he  should  have  lost  his  com- 
mon, but  only  the  profits  of  his  common;  that  is,  that  he  could  not 
take  them  so  well  as  before. 

Nares,  J.,  of  the  same  opinion.  In  the  Case  of  the  Dippers  at  Tun- 
bridge  Wells,  2  Wils.  422,  it  was  held  that  a  probable  damage  is  a 
sufficient  injury  on  which  to  ground  an  action. 

Per  Tot  Cur,     Judgment  for  the  plaintiff. 

De  Gray  and  Goui^d,  JJ.,  also  gave  concurring  opinions.* 


MARZETTI  V,  WILLIAMS. 

(Court  of  King's  Bench,  1S30.     1  Barn.  &  Adol.  415.) 

This  was  an  action  of  tort,  brought  by  the  plaintiff,  a  merchant, 
against  defendants,  his  bankers,  to  recover  damages  for  the  dishonor 
of  plaintiff's  check.  On  the  evening  of  December  17,  1828,  plaintiff 
had  a  balance  with  defendants  of  £69.  19s.  6d.  Shortly  before  11  a. 
m.  on  the  19th  he  deposited  i40  more.  At  10  minutes  past  3  that  aft- 
ernoon, a  check,  drawn  by  plaintiff,  for  i87.  7s.  6d.,  was  presented 
for  payment.  The  clerk  to  whom  it  was  presented,  not  knowing  of 
the  last  deposit,  declined  to  pay  the  check,  but  it  was  paid  on  the  fol- 
lowing day.  A  verdict  having  been  found  for  the  plaintiff,  a  rule  nisi 
for  a  new  trial  was  obtained. 

Lord  Tenterden,  C.  J.  I  think 'that  the  plaintiff  is  entitled  to  have 
a  verdict  for  nominal  damages,  although  he  did  not  prove  any  actual 
damage  at  the  trial,  I  cannot  think  there  can  be  any  difference,  as 
to  the  consequences  resulting  from  a  breach  of  contract  by  reason  of 
that  contract  being  either  express  or  implied.    The  only  difference  be- 

*  For  other  early  cases,  see  Feize  v.  Thompson,  1  Taunt.  121  (1HU8) ;  Bar- 
ker V.  Greene,  2  Bing.  .317  (1S24) ;  Pindar  v.  Wadsworth,  2  East,  154  (1S02) : 
Hlofield  V.  Pavne,  4  Barn.  &  Adol.  410  (1833);  Chandler  v.  Doulton,  3  Hurl. 
&  C.  553  (18G5);  Cotterill  v.  Hobby,  4  Barn.  &  C.  4G5  (1825);  Mellor  v.  Spate- 
man.  1  Saund.  346  (IGGG) ;  Taylor  v.  Heuuiker,  12  Adol.  &  E.  488  (1840). 


8  NOMINAL  DAMAGES.  (Part  3 

tween  an  express  and  an  implied  contract,  is  in  the  mode  of  sub- 
stantiating it.  An  express  contract  is  proved  by  an  actual  agreement ; 
an  implied  contract  by  circumstances,  and  the  general  course  of  deal- 
ing between  the  parties;  but  whenever  a  contract  is  once  proved,  the 
consequences  resulting  from  the  breach  of  it  must  be  the  same,  wheth- 
er it  be  proved  by  direct  or  circumstantial  evidence.  The  attorney- 
general  was  compelled  to  admit,  in  this  case,  that  if  the  action  were 
founded  on  an  express  contract,  the  plaintiff  would  have  been  en- 
titled to  recover  nominal  damages,  although  no  actual  damage  were 
proved.  Now  this  action  is,  in  fact,  founded  on  a  contract,  for  the 
banker  does  contract  with  his  customer  that  he  will  pay  checks  drawn 
by  him,  provided  he,  the  banker,  has  money  in  his  hands  belonging 
to  that  customer.  Here  that  contract  was  broken,  for  the  defendants 
would  not  pay  the  check  of  the  plaintiff,  although  they  had  in  their 
hands  money  belonging  to  him,  and  had  had  a  reasonable  time  to  know 
that  such  was  the  fact.  In  this  case  a  plaintiff  might,  for  the  breach 
of  that  contract,  have  declared  in  assumpsit.  So  in  Burnett  v.  Lynch, 
5  Barn.  &  C.  589,  the  plaintiff  might  have  declared  as  for  breach  of  a 
contract.  It  is  immaterial  in  such  a  case  whether  the  action  in  form 
be  in  tort  or  in  assumpsit.  It  is  substantially  founded  on  a  contract; 
and  the  plaintiff,  though  he  may  not  have  sustained  a  damage  in  fact, 
is  entitled  to  recover  nominal  damages.  At  the  same  time  I  cannot 
forbear  to  observe,  that  it  is  a  discredit  to  a  person,  and  therefore 
injurious  in  fact,  to  have  a  draft  refused  payment  for  so  small  a  sum, 
for  it  shews  that  the  banker  had  very  little  confidence  in  the  customer. 
It  is  an  act  particularly  calculated  to  be  injurious  to  a  person  in  trade. 
My  judgment  in  this  case,  however,  proceeds  on  the  ground  that  the 
action  is  founded  on  a  contract  between  the  plaintiff  and  the  bankers, 
that  the  latter,  whenever  they  should  have  money  in  their  hands  be- 
longing to  the  plaintiff,  or  within  a  reasonable  time  after  they  should 
have  received  such  money,  would  pay  his  checks ;  and  there  having 
been  a  breach  of  such  contract,  the  plaintiff  is  entitled  to  recover  nomi- 
nal damages.  * 


WEBB  V.  PORTLAND  MFG.  CO. 

(CJircuit  CJourt  of  the  United  States,  1838.    3  Sumn.  189,  Fed.  Oas.  No.  17,322.) 

Bill  in  equity  by  Joshua  Webb  against  the  Portland  Manufacturing 
Company  to  restrain  the  diversion  of  water  from  plaintiff's  mill.  On 
the  stream  on  which  the  mill  was  situated  were  two  dams,  the  distance 
between  which  was  about  40  or  50  rods,  occupied  by  the  mill-pond  of 
the  lower  dam.  Plaintiff  owned  certain  mills  and  mill  privileges  on 
the  lower  dam.    Defendants  also  owned  certain  other  mills  and  mill 

6  other  concurring  opinions  are  omitted. 
Accord:     Rolin  v.  Steward,  14  C.  B.  595  (1854). 


Part  2)  NOMINAL  DAMAGES.  • 

privileges  on  the  same  dam.  To  supply  water  to  one  of  such  mills, 
defendants  made  a  canal  from  the  pond  at  a  point  immediately  below 
the  upper  dam.  The  water  thus  withdrawn  by  them  for  that  purpose 
was  about  one-fourth  of  the  water  to  which  defendants  were  entitled 
as  mill-owners  on  the  lower  dam,  and  was  returned  into  the  stream 
immediately  below  that  dam. 

Story    T.s     *     *     *     I  can  very  well  understand  that  no  action 
lies  in  a  case  where  there  is  damnum  absque  injuria;    that  is,  where 
there  is  a  damage  done  without  any  wrong  or  violation  of  any  right 
of  the  plaintiff.     But  I  am  not  able  to  understand  how  it  can  correct- 
ly be  said,  in  a  legal  sense,  that  an  action  will  not  lie,  even  in  case  of 
a  wrong  or  violation  of  a  right,  unless  it  is  followed  by  some  percep- 
tible damage,  which  can  be  established  as  a  matter  of  fact;    in  oth- 
er words,  that  injuria  sine  damno  is  not  actionable.     See  Mayor  of 
Lynn,  etc.,  v.  Mayor  of  London,  4  Term  R.  130,  141,  143,  144;   Com. 
Dig.  "Action  on  the  Case,"  B  1,  2.  (  On  the  contrary,  from  my  earli- 
est reading,  I  have  considered  it  laid  up  among  the  very  elements  of 
the  common  law  that  wherever  there  is  a  wrong  there  is  a  remedy  to 
redress  it;  and  ^hat  every  injury  imports  damage  in  the  nature  of  it; 
and,  if  no  other  damage  is  established,  the  party  injured  is  entitled 
to  a  verdict  for  nominal  damages.  \  A  fortiori,  this  doctrine  applies 
where  there  is  not  only  a  violation  of  a  right  of  the  plaintiff,  but  the 
act  of  the  defendant,  if  continued,  may  become  the  foundation,  by 
lapse  of  time,  of  an  adverse  right  in  the  defendant ;  for  then  it  assumes 
the  character,  not  merely  of  a  violation  of  a  right  tending  to  diminish 
its  value,  but  goes  to  the  absolute  destruction  and  ex'tinguishment  of 
it.     Under  such  circumstances,  unless  the  party  injured  can  protect 
his  right  from  such  a  violation  by  an  action,  it  is  plain  that  it  may  be 
lost   or   destroyed,   without   any   possible   remedial   redress.      In   my 
judgment,  the  common  law  countenances  no  such  inconsistency,  not 
to  call  it  by  a  stronger  name.     Actual,  perceptible  damage  is  not  in- 
dispensable as  the   foundation  of  an  action.     The  law   tolerates  no 
further  inquiry  than  whether  there  has  been  'the  violation  of  a  right. 
If  so,  the  party  injured  is  entitled  to  maintain  his  action  for  nominal 
damages  in  vindication  of  his  right,  if  no  other  damages  are  fit  and 
proper  to  remunerate  him. 

[The  court  then  cites  and  discusses  the  case  of  Ashby  v.  White,  2 
Ld.  Raym.  938.] 

The  principles  laid  down  by  Lord  Holt  are  so  strongly  commended, 
not  only  by  au'thority,  but  by  the  common  sense  and  common  justice 
of  mankind,  that  they  seem  absolutely,  in  a  judicial  view,  incontro- 
vertible. And  they  have  been  fully  recognized  in  many  other  cases. 
In  the  case  of  Ashby  v.  White,  as  reported  by  Lord  Raymond,  (3  Ld. 
Raym.  953,)  Lord  Holt  said:    "If  the  plaintiff  has  a  right,  he  must 

«  Part  of  the  opinion  is  omitted. 


10  NOMINAL  DAMAGES.  (Part  2 

of  necessity  have  means  to  vindicate  and  main'tain  it,  and  a  remedy, 
if  he  is  injured  in  the  exercise  or  enjoyment  of  it;  and,  indeed,  it  is 
a  vain  thing  to  imagine  a  right  without  a  remedy ;  for  want  of  right 
and  want  of  remedy  are  reciprocal."    S.  P.  6  Mod.  53. 

The  note  of  Mr.  Sergeant  Williams  to  Mellor  v,  Spateman,  1  Saund. 
346a,  note  2 ;  Wells  v.  Watling,  2  W.  Bl.  1233 ;  and  the  case  of  the 
Tunbridge  Dippers,  (Weller  v.  Baker,)  2  Wils.  414, — are  direct  to  the 
purpose.  I  am  aware  that  some  of  the  old  cases  inculcate  a  different 
doctrine,  and  perhaps  are  not  reconcilable  with  that  of  Lord  Holt. 
There  are  also  some  modern  cases  which  at  first  view  seem  to  the 
contrary.  But  they  are  distinguishable  from  that  now  in  judgment; 
and,  if  they  were  not,  ego  assentior  scsevoloe. 

On  the  other  hand,  Marzetti  v.  Williams,  1  Barn.  &  Adol.  415, 
goes  the  whole  length  of  Lord  Holt's  doctrine;  for  there  the  plain- 
tiff recovered,  notwithstanding  no  actual  damage  was  proved  at  the 
trial;  and  Air.  Justice  Taunton  on  that  occasion  cited  many  authori- 
ties to  show  that  where  a  wrong  is  done,  by  which  the  right  of  the 
party  may  be  injured,  it  is  a  good  cause  of  action,  although  no  actual 
damage  be  sustained.  In  Hobson  v.  Todd,  4  Term  R.  71,  73,  the 
court  decided  the  case  upon  the  very  distinction,  which  is  most  ma- 
terial to  the  present  case,  that  if  a  commoner  might  not  maintain  an 
action  for  an  injury,  however  small,  to  his  right,  a  mere  wrong-doer 
might,  by  repeated  torts,  in  the  course  of  time  establish  evidence  of  a 
right  of  common.  The  same  principle  was  afterwards  recognized  by 
Mr.  Justice  Grose,  in  Pindar  v.  Wadsworth,  2  Easft,  162.  But  the 
case  of  Bower  v.  Hill,  1  Bing.  N.  C.  549,  fully  sustains  the  doctrine 
for  which  I  contend;  and,  indeed,  a  stronger  case  of  its  application 
cannot  well  be  imagined.  There  the  court  held  that  a  permanent  ob- 
struction to  a  navigable  drain  of  the  plaintiff's,  though  choked  up  with 
mud  for  16  years,  was  actionable,  although  the  plaintiff  received  no 
immediate  damage  thereby;  for,  if  acquiesced  in  for  20  years,  it 
would  become  evidence  of  a  renunciation  and  abandonment  of  the 
right  of  way.     *     *     * 

Upon  the  whole,  without  going  further  into  an  examination  of  the 
authorities  on  this  subject,  my  judgment  is  that,  whenever  there  is  a 
clear  violation  of  a  right,  it  is  not  necessary  in  an  action  of  this  sort 
to  show  actual  damage ;  that  every  violation  imports  damage ;  and, 
if  no  other  be  proved,  the  plaintiff  is  entitled  to  a  verdict  for  nominal 
damages;  and  a  fortiori  that  this  doctrine  applies  whenever  the  act 
done  is  of  such  a  nature  as  that  by  its  repetition  or  continuance  it  may 
become  the  foundation  or  evidence  of  an  adverse  right.  See,  also, 
Mason  v.  Hill,  3  Barn.  &  Adol.  304,  5  Barn.  &  Adol.  1.  But  if  the 
doctrine  were  otherwise,  and  no  action  were  maintainable  at  law, 
without  proof  of  actual  damage,  that  would  furnish  no  ground  why 
a  court  of  equity  should  not  interfere,  and  protect  such  a  right  from 
violation  and  invasion;    for,   in  a  great  variety  of  cases,  the  very 


Part  2)  NOMINAL  DAMAGES.  11 

ground  of  the  interposition  of  a  court  of  equity  is  that  the  injury  done 
is  irremediable  at  law,  and  that  the  right  can  only  be  permanently 
preserved  or  perpetuated  by  the  powers  of  a  court  of  equity/ 


DIXON  V.  CLOW. 
(Supreme  Court  of  New  York,  1S40.    24  Wend.  188.) 

Action  quare  clausum  fregit.  On  the  22d  of  April,  1832,  the  plain- 
tiff by  deed  conveyed  to  one  Garlicts  a  piece  of  land  100  feet  long  and 
70  feet  wide,  with  the  privilege  of  taking  water  from  the  Cold  Spring 
brook,  which  ran  through  plaintiff's  farm,  for  the  purpose  of  the 
erection  of  a  waterworks.  Defendant  acquired  Garlicts'  title,  and  in 
the  spring  of  1838  entered  and  constructed  a  ditch  through  plaintiff's 
land,  removing  several  lengths  of  fence.  The  plaintiff  complains  of 
these  acts  as  exceeding  the  authority  conferred  by  the  grant. 

The  court  instructed  the  jury  that  there  was  doubt  whether  a  ver- 
dict might  be  found  for  the  plaintiff,  when  he  had  not  proved  any 
sum  as  damages  and  had  not  offered  any  evidence  as  to  the  amount 
thereof.    From  a  verdict  for  the  defendant,  the  plaintiff  appeals, 

Bronson,  J.®  The  defendant  has  an  easement  in  the  plaintiff's 
"land,  and  must  be  allowed  to  enjoy  it  in  such  a  manner  as  will  secure 
to  him  all  the  advantages  contemplated  by  the  grant.  But  he  must 
so  use  his  own  privileges  as  not  to  do  any  unnecessary  injury  to  the 
plaintiff.     *     *     * 

The  case  should  I  think,  have  been  submitted  to  the  jury  to  say, 
whether  the  acts  of  which  the  plaintiff  complains  were  necessary  to 
the  enjoyment  of  the  defendant's  privileges,  or  whether  he  acted  wan- 
tonly, and  did  an  unnecessary  injury  to  plaintiff. 

If  the  plaintiff  succeeded  in  showing  an  unlawful  entry  upon  his 
land,  or  that  his  fences  or  any  portion  of  them  were  improperly  thrown 
down  and  his  fields  exposed,  he  was  entitled  to  a  verdict  for  nominal 
damages  at  the  least.  It  was  not  necessary  for  him  to  prove  a  sum, 
or  that  any  particular  amount  of  damages  had  been  sustained ;  and 
the  charge  was  in  this  respect  improper.  From  the  pleadings  and  the 
course  of  the  trial,  it  is  evident  that  the  action  was  brought  for  the 
purpose  of  trying  the  extent  of  the  defendant's  right.    It  is  suggested, 

7  The  principal  case  is  commented  on  in  Embroy  v.  Owen,  6  Exoh.  353 
(1851).  It  is  clear  that,  whenever  there  is  an  injury  to  a  right,  which.  If 
acquiesced  in,  would  in  the  course  of  time  create  an  adverse  right  in  the 
wrongdoer,  there  an  action  is  maintainable,  without  proof  of  any  specific  in- 
jury. Wood  V.  Waud.  3  Exch.  748  (184U) ;  Hobson  v.  Todd,  4  Term  R.  71 
(1700);  Pindar  v.  Wadsworth,  2  East,  154  (1S02);  Tyler  v.  Wilkinson.  4 
Mason,  400,  Fed.  Cas.  No.  14.312  (1827);  Williams  v.  Mostyn,  4  Mees.  &  W. 
145  (1838);  Bower  v.  Hill,  1  Bing.  N.  C.  549  (1835);  Moore  v.  Browne,  Dyer, 
319. 

8  Tart  of  the  opinion  is  omitted,  and  the  statement  of  facts  is  rewritten. 


12  NOMINAL  DAMAGES.  (Part  2 

and  is  probably  true,  tha't  a  suit  was  first  commenced  in  a  justice's 
court,  where  the  defendant  pleaded  title,  and  thus  made  it  necessary 
for  the  plaintiff  to  sue  in  the  common  pleas.  But  however  that  fact 
may  be,  every  unauthorized  entry  upon  the  land  of  another  is  a  tres- 
pass, and  whether  the  owner  suffer  much  or  little,  he  is  entitled  to  a 
verdict  for  some  damages. 
Judgment  reversed. 


SMITH  V.  THACKERAH  et  al. 

(Court  of  Common  Pleas,  18G6.     L.  R.  1  C.  P.  564.) 

Rule  to  show  cause. 

Tbe  plaintiff  was  possessed  of  a  piece  of  land  on  which  a  building 
had  been  recently  erected.  The  defendants,  who  were  neighbor- 
ing land-owners,  dug  a  well  on  their  own  land  near  to  that  of  the 
plaintiff,  and  afterwards  filled  up  the  well  with  such  loose  earth  that 
the  ground  round  it  sank,  and  the  plain'tiff's  building  was  injured, 
causing  damage  to  the  amount  of  fl5.  The  jury  found,  in  answer 
to  questions  by  the  chief  justice,  that  the  land  of  the  plaintiff  would 
have  sunk  if  there  had  been  no  building  on  it,  and  that  some  particles 
of  sand  from  it  would  have  fallen  onto  the  defendants'  property,  but 
that  the  plaintiff  would  have  suffered  no  appreciable  damage.  A  ver- 
dict was  entered  for  the  defendants,  with  leave  to  the  plaintiff  to  move 
to  enter  the  verdict  for  such  sum,  under  il5,  as  the  court  should 
direct,  on  the  ground  that  the  facts  proved  at  the  trial  entitled  the 
plaintiff  to  a  verdict  without  proof  of  any  pecuniary  damage. 

ErIvE,  C.  J.  I  am  of  opinion  that  this  rule  should  be  discharged. 
There  is  no  doubt  that  a  right  of  action  accrues  whenever  a  person  in- 
terferes with  his  neighbor's  rights,  as,  for  example,  by  stepping  on  his 
land,  or  as  in  the  case  of  Ashby  v.  White,  1  Smith,  Lead.  Cas.  (5th 
Ed.)  216,  interfering  with  his  right  to  vote,  and  this  though  no  actual 
damage  may  result.  But  for  a  man  to  dig  a  hole  in  his  own  land  is 
in  itself  a  perfectly  lawful  act  of  ownership,  and  it  only  becomes  a 
wrong  if  it  injures  his  neighbor;  and,  since  it  is  the  injury  itself 
which  gives  rise  to  the  right  of  action,  there  can  be  no  right  of  ac- 
tion unless  the  damage  is  of  an  appreciable  amount.  A  person  may 
build  a  chimney  in  front  of  your  drawing-room,  and  the  smoke  from 
it  may  annoy  you,  or  he  may  carry  on  a  trade  next  door  to  your  house, 
the  noise  of  which  may  be  inconvenient;  but,  unless  the  smoke  or 
noise  be  such  as  to  do  you  appreciable  damage,  you  have  no  right  of 
action  against  him  for  what  is  in  itself  a  lawful  act.  In  the  case  of 
Smelting  Co.  v.  Tipping,  11  H.  L.  Cas.  642,  35  Law  J.  Q.  B.  66,  in 
which  the  defendant  had  set  up  some  chemical  works,  the  house  of 
lords  held  that  if  the  noxious  vapors  did  not  cause  material  damage 
to  the  plaintiff,  he  had  no  cause  of  action.  In  the  present  case,  the 
digging  the  well  and  filling  it  up  again  were  in  themselves  perfectly 


Part  2)  NOMINAL  DAMAGES.  13 

lawful  acts,  and  'the  jury  have  found  that  they  did  no  sensible  damage 
to  the  plaintiflF,  and  he  has  therefore  no  right  of  action. 

Byles,  J.  I  am  of  the  same  opinion.  In  actions  for  a  trespass,  the 
trespass  itself  is  a  sufficient  cause  of  action.  But  in  actions  for  indirect 
injuries  like  the  present,  the  judgment  of  the  house  of  lords  in  Back- 
house V.  Bonomi,  9  H.  L.  Cas.  503,  34  Law  J.  Q.  B.  181,  shows  that 
there  is  no  cause  of  action  if  there  be  no  damage,  and  I  cannot  distin- 
guish between  no  appreciable  damage  to  the  land  in  its  natural  state 
and  no  damage  at  all. 

Montague  Smith,  J.  I  am  of  the  same  opinion.  The  mere  sub- 
sidence of  the  surface  of  the  soil  is  not  necessarily  an  injury,  and  we 
are  bound  by  the  verdict  of  the  jury,  who  found  that  in  fact  no  ap- 
preciable damage  would  have  occurred  if  these  new  buildings  had 
not  been  on  the  land.' 


PAUL  V.  SLASON. 

(Supreme  Court  of  Vermont,  1«50.    22  Vt.  231,  54  Am.  Dec.  75.) 

On  September  26,  1844,  the  defendant  Francis  Slason  commenced 
a  suit  in  the  name  of  B.  F.  Langdon  against  the  plaintiff,  and  the 
defendamt  Charles  H.  Slason,  who  was  deputized  to  serve  the  writ, 
attached  two  cords  of  wood,  two  baskets,  one  pitchfork,  two  horses, 
one  harness,  one  wagon,  and  some  grain.  The  defendants  also  took 
a  pitchfork  of  the  plaintiff,  but  which  had  not  been  attached,  and  used 
it  during  the  day  in  removing  the  grain.  The  plaintiff  sued  in  -tres- 
pass, and  among  other  requests  asked  the  court  to  charge  the  jury 
that,  "if  the  jury  found  tha't  the  defendants  took  the  plaintiff's  pitch- 
fork and  used  it  during  the  day  without  right,  he  was  entitled  to  re- 
cover its  value,  unless  it  were  returned,  and  that,  if  returned,  he  was 
entitled  'to  recover  nominal  damages."  The  court,  however,  charged 
the  jury  that  if  they  believed,  from  the  evidence,  that  the  defendants 
took  and  carried  it  away,  they  should  give  the  plaintiff'  its  value ;  that 
if  it  was  used  and  left  upon  the  premises,  so  that  the  defendant  re- 
ceived it  again,  and  it  was  injured  by  the  use,  the  plaintiff  would  be 
entitled  to  recover  the  amount  of  the  injury;  but  that  if  they  found, 
that  it  was  merely  used  for  a  portion  of  a  day  in  removing  'the  plain- 
tiff's property,  there  attached,  and  was  left  where  it  was  found,  so 
that  the  plaintiff  had  it  again,  and  that  it  was  not  injured  by  the 

9  Nominal  damages  are  always  recoverable,  when  a  right  has  been  invaded, 
for  the  protection  of  that  right.  Tootle  v.  Clifton,  22  Ohio  St.  247,  30  Am. 
Rep.  732  (1871)  ;  Parker  v.  Griswold,  17  Conn.  28S,  42  Am.  Dec.  739  (1S4.)) ; 
Chapman  v.  Thames  Mfg.  Co.,  13  Conn.  2Gy,  33  Am.  Dec.  401  (1839).  And 
this  is  true,  even  though  the  invasion  may  have  resulted  In  positive  benefit. 
Jewett  v.  Whitney,  43  Me.  242  (1857);  Murphy  v.  City  of  Fond  du  Lac,  23 
Wis.  3G5,  99  Am.  Dec.  181  (18U8),  reported  herein  at  page  3&1. 


14  NOMINAL  DAMAGES.  (Part  2 

use,  they  were  not  bound  to  give  the  plaintiff  damages  for  such  use. 
The  jury  returned  a  verdict  for  the  defendants.  Exceptions  by  plain- 
tiff. 

Poland,  J.^°  *  *  *  Another  question  is  also  raised  upon  the 
charge  to  the  jury  in  relation  to  the  use  of  the  pitchfork  by  the  de- 
fendants. Under  the  charge,  the  jury  must  have  found  that  the  pitch- 
fork was  used  by  the  defendants  only  in  moving  the  plaintiff's  prop- 
erty, that  it  was  left  where  they  found  it,  that  the  plaintiff  received 
it  again,  and  that  it  was  in  no  way  or  manner  injured.  They  were 
told  by  the  court,  that  if  they  found  all  these  facts  proved,  they  were 
not  obliged  to  give  the  plaintiff  any  damages  for  the  fork. 

It  is  true,  that,  by  the  theory  of  the  law,  whenever  an  invasion  of  a 
right  is  established,  though  no  actual  damage  be  shown,  the  law 
infers  a  damage  to  the  owner  of  the  property  and  gives  nominal  dam- 
ages. This  goes  upon  the  ground,  either  that  some  damage  is  the 
probable  result  of  the  defendant's  act,  or  that  his  act  would  have  effect 
to  injure  the  other's  right,  and  would  be  evidence  in  future  in  favor 
of  the  wrongdoer.  This  last  applies  more  particularly  to  unlawful 
entries  upon  real  property,  and  to  disturbance  of  incorporeal  rights, 
when  the  unlawful  act  might  have  an  effect  upon  the  right  of  the  party 
and  be  evidence  in  favor  of  the  wrongdoer,  if  his  right  ever  came  in 
question.  In  these  cases  an  action  may  be  supported,  though  there 
be  no  actual  damage  done — because  otherwise  the  party  might  lose 
his  right.  So,  too,  whenever  any  one  wantonly  invades  another's 
rights  for  the  purpose  of  injury,  an  action  will  lie,  though  no  actual 
damage  be  done ;  the  law  presumes  damage,  on  account  of  the  unlaw- 
ful intent.  But  it  is  believed  that  no  case  can  be  found,  where  damages 
have  been  given  for  a  trespass  to  personal  property,  when  no  unlaw- 
ful intent,  or  disturbance  of  a  right,  or  possession,  is  shown,  and 
when  not  only  all  probable,  but  all  possible,  damage  is  expressly  dis- 
proved. 

The  English  courts  have  recently  gone  far  towards  breaking  up  the 
whole  system  of  giving  verdicts,  when  no  actual  injury  has  been  done, 
unless  there  be  some  right  in  question,  which  it  was  important  to 
the  plaintiff  to  establish.  In  the  case  of  Williams  v.  Mostyn,  4  M.  &: 
W.  145,  where  case  was  brought  for  the  voluntary  escape  of  one  Lang- 
ford,  taken  on  mesne  process,  and  it  was  admitted  that  the  plaintiff 
had  sustained  no  actual  damage  or  delay,  the  defendant  having  re- 
turned to  the  custody  of  the  plaintiff,  a  verdict  was  found  for  the 
plaintiff  for  nominal  damages.  But,  on  motion,  the  court  directed  a 
nonsuit  to  be  entered,  saying  that  there  had  been  no  damage  in  fact 
or  in  law.  So  in  a  suit  brought  by  the  owner  of  a  house  against  a 
lessee,  for  opening  a  door  without  leave,  the  premises  not  being  in 
any  way  weakened,  or  injured,  by  the  opening,  the  court  refused  to 
allow  damages,  and  remitted  the  case  to  the  jury  to  say,  whether  the 

10  Part  of  the  opiniou  is  omitted,  and  the  statement  of  facts  is  rewritten. 


Part  2)  NOMINAL  DAMAGES.  15 

plaintiff's  reversionary  interest  had  in  point  of  fact  been  prejudiced. 
Young  V.  Spencer,  10  B.  &  C.  145,  [21  E.  C.  L.  70.]  Mr.  Broome,  in 
his  recent  work  on  Legal  Maxims,  lays  down  the  law  in  the  following" 
language:  "Farther,  there  are  some  injuries  of  so  small  and  little  con- 
sideration in  the  law,  that  no  action  will  lie  for  them ;  for  instance,  in 
respect  to  the  payment  of  tithes,  the  principle  which  may  be  extracted 
from  the  cases  appears  to  be,  that  for  small  quantities  of  corn,  invol- 
untarily left  in  the  process  of  raking,  tithe  shall  not  be  payable,  unless 
there  be  any  particular  fraud,  or  intention  to  deprive  the  person  of 
his  full  right." 

If  any  farther  authority  is  deemed  necessary,  in  support  of  the  rul- 
ing of  the  county  court  on  this  point,  we  have  only  to  refer  to  that 
ancient  and  well  established  maxim — de  minimis  non  curat  lex — which 
seems  peculiarly  applicable  in  this  case,  and  would  alone  have  been 
ample  authority  upon  this  part  of  the  case ;  for  we  fully  agree  with 
Mr.  Sedgwick,  that  the  law  should  hold  out  no  inducement  to  useless 
or  vindictive  litigation.  Sedg\vick  on  Dam.  G2.  This'disposes  of  all 
the  questions  raised  upon  the  charge.^^ 


WARTMAN  V.  SWINDELL. 

(Court  of  Errors  and  Appeals  of  New  Jersey,  IS'J'2.     54  N.  J.  Law  589,  25 
Atl.   35G,    18   L.   R.   A.   44.) 

Van  SvcKiiL,  J.  In  September,  1891,  the  clerk  of  the  plaintiff  in 
error,  who  was  plaintiff  below,  drove  the  horse  and  carriage  of  the 
plaintiff  to  the  sheriff's  office  in  Camden,  and  there  tied  the  horse  to 
a  post  at  the  curb  line  of  the  street.  While  the  clerk  was  in  the  sher- 
iff's office,  the  lines,  worth  about  three  dollars  or  four  dollars,  were 
taken  from  the  horse  by  the  defendant  in  error,  and  the  clerk  was 
left  without  the  means  of  driving  the  horse.  He  thereupon  demanded 
the  lines  of  the  defendant,  who  refused  to  return  them  to  him.  The 
clerk  then  went  to  the  office  of  the  plaintiff,  and  informed  him  of  the 
occurrence,  and  was  instructed  to  return  to  the  courthouse,  and  again 
demand  the  lines  of  'the  defendant.  A  second  demand  was  made,  and 
the  defendant  refused  to  comply  with  it.  Thereupon  the  plaintiff 
brought  suit  against  the  defendant  for  damages.  On  the  trial  of  the 
cause  in  the  court  below  the  plaintiff,  after  proving  the  facts  above 
stated,  rested  his  case.  On  the  cross-examination  of  the  plaintiff's 
clerk  it  appeared  that  the  defendant  said  to  him  that  the  plaintiff  had 
taken  a  small  article  from  the  defendant,  and  the  clerk,  in  reply  to  the 
question  whether  the  defendant  did  not  take  the  lines  by  way  of  a 
joke,  said  he  "supposed  perhaps  he  did  it  in  a  joke,  but  he  did  not 
know  what  it  was  done  for  when  it  was  first  done."    When  the  plain- 

11  The  principal  case  Is  discussed  lu  .Fullam  v.  Stearns,  30  Vt  454  (1S57) 


^/ 


'■^'^^•^  Co^ 


16  NOMINAL  DAMAGES.  (Part  2 

tiff  had  rested  his  case,  the  trial  judge  said:  "If  the  defendant  will 
make  a  tender  of  these  lines  now,  I  will  dismiss  tliis  case  upon  the 
ground  de  minimis  non  curat  lex."  The  defendant  thereupon  tendered 
the  lines  to  the  plaintiff,  and  the  court  dismissed  the  jury  from  the 
further  consideration  of  it.  This  disposition  of  the  case  is  the  error 
complained  of  in  this  court. 

The  trial  judge  acted  upon  the  idea  that  the  conduct  of  the  defend- 
ant was  intended  as  a  joke,  and  that  the  matter  involved  was  too 
insignificant  to  claim  the  attention  of  the  court.  If  the  defendant 
relied  upon  the  fact  that  he  removed  the  lines  by  way  of  a  joke,  it 
was  a  question  for  the  jury  to  decide  whetlier  the  parties  had  been 
perpetrating  practical  jokes  upon  each  other  in  such  a  way  tliat  the 
defendant  had  a  right  to  believe  that  the  plaintiff  would  accept 
this  act  as  a  joke.  That  question  could  not  legally  be  taken  from  the 
jury,  and  settled  by  the  court;  nor,  in  my  judgment,  was  the  maxim  de 
minimis  non  curat  lex  applicable  to  tliis  case.  In  Seneca  Road  Co. 
V.  Auburn  &  R.  R.  Co.,  5  Hill  (N.  Y.)  175,  Mr.  Justice  Cowen  said 
this  maxim  is  never  applied  to  the  positive  and  wrongful  invasion  of 
another's  property.  The  right  to  maintain  an  action  for  the  value  of 
property,  however  small,  of  which  the  owner  is  wrongfully  deprived, 
is  never  denied.  A  trespass  upon  lands  is  actionable,  although  the 
damage  to  the  owner  is  inappreciable.  The  celebrated  Six  Carpenters' 
Case,  reported  in  8  Coke,  432,  involved  a  trifling  sum.  But  as  the  case 
in  hand  stood  at  the  close  of  the  plaintiff's  testimony,  I  am  not  pre- 
pared to  say  that  a  verdict  for  substantial  damages  would  not  have 
been  justifiable. 

In  my  opinion,  the  trial  court  erred  in  dismissing  this  case,  and  the 
judgment  below  should  therefore  be  reversed.^^ 


CHAMBERLAIN  v.  PARKER. 

(Court  of  Appeals  of  New  York,  1871.    45  N.  T.  5G'J.) 

Action  for  breach  of  covenant  to  put  down  an  oil  well.  On  the 
17th  of  February,  1865,  Chamberlain  &  Knox  leased  to  the  defendant, 
all  of  their  right,  title  and  interest  and  claim  on  lot  26,  Cornplanter 
run,  Venango  county,  Pennsylvania.  The  lease  was  signed  by  both 
parties,  and  contained  the  following  clause:  "It  is  further  expressly 
understood,  that  the  party  of  the  second  part  (defendant),  is  to  put 
down  a  well  to  the  depth  of  six  hundred  feet,  by  the  1st  day  of  July 
next,  unless  detained  by  unavoidable  accident,  and  to  pay  three  dol' 
lars  a  cord  for  the  wood  standing  on  the  lot." 

Andrews,  J.  The  instrument  of  February  17,  1865,  called  a  lease, 
conveyed  to  the  defendant  all  the  interest  of  Chamberlain  &  Knox,  in 
the  premises  described  therein,  and  left  in  them  no  reversion  but  a 

12  See,  also,  Potter  v.  Mellen,  36  Minn.  122,  30  N.  W.  43S  (1886),  deceit 


Part  2)  NOMINAL  DAMAGES.  17 

right  of  entry  merely,  on  bieach  of  condition  subsequent.  The  defend- 
ant, by  accepting  the  conveyance,  became  bound  to  perform  the  stipu- 
lation on  his  part  recited  therein,  although  he  had  not  signed  it,  and 
the  right  of  re-entry  being  attached  to  the  covenants,  gave  them  the 
force  of  conditions.  Co.  Litt.  217,  note ;  Rawson's  Adm'r  v.  Copland, 
2  Sandf.  Ch.  251 ;  Jackson  v.  McClallen,  8  Cow.  295. 

It  is  not  denied  that  the  defendant  wholly  failed  to  perform  his 
agreement  to  sink  a  well  on  the  demised  premises,  and  he  became  by 
such  default  liable  to  an  action  for  a  breach  of  the  agreement.  The 
only  question  in  the  case  respecting  the  measure  of  damages  was  the 
amount  which  the  plaintiff,  as  assignee  of  the  grantor,  was  entitled  to 
recover.  (The  learned  judge,  before  whom  the  case  was  tried,  held 
that  the  measure  of  damages  was  the  amount  it  would  cost  to  sink  a 
well  on  the  premises  to  the  stipulated  depth,  and  the  verdict  was  in  ac- 
cordance with  the  rule  adopted  by  the  court.  It  is  the  general  rule  that 
in  actions  for  a  breach  of  a  covenant  or  contract,  the  plaintiff  is  en- 
titled to  recover  what  he  has  lost  by  the  default  of  the  defendant.  The 
law  seeks  to  give  compensation  and  indemnity,  and  nothing  beyond  it. 
If  there  are  some  exceptions  to  this  rule,  it  is  not  now  material  to 
notice  them.  Sedg.  Dam.  204.  The  measure  of  damages  is  to  be 
sought  in  the  contract  made  by  the  parties,  and  where  the  amount  of 
compensation  is  not  fixed  by  the  contract,  then  the  natural  approximate 
injury  occasioned  by  the  breach  of  duty  is,  within  the  contemplation 
of  the  parties,  the  measure  of  compensation.  Where  compensation  is 
to  be  made  to  the  plaintiff  by  delivery  of  an  article  of  value,  the 
value  of  the  article  is  the  loss  sustained  by  the  plaintiff',  if  the  contract 
is  broken.  So  where  a  defendant  for  a  compensation  paid  should 
agree  to  build  a  house  for  the  plaintiff,  the  value  of  the  house  would 
measure  the  damages,  if  the  defendant  omitted  to  perform  the  contract. 
In  these  and  like  cases,  it  is  easily  seen  that  actual  pecuniary  loss 
has  been  sustained  in  consequence  of  the  default  of  the  defendant. 

But  there  may  be  loss,  in  a  legal  sense,  sustained  by  the  plaintiff 
from  the  breach  of  a  contract  by  the  other  party,  although  it  could  be 
seen  that  performance  would  have  not  benefited,  but  might  have  injur- 
ed him.  If  the  owner  of  land  employs  and  pays  another  to  perform  a 
certain  act  upon  it,  or  to  erect  a  certain  structure,  it  would  be  no  de- 
fense to  an  action  by  the  employer  for  a  breach  of  tlie  contract  to 
show  that  the  act  to  be  done  or  the  erection  to  be  made,  would  injure 
the  land  or  impair  its  value.  The  owner  would  be  entitled  to  recover 
the  value  of  the  work  and  labor  which  the  defendant  was  to  perform, 
although  the  thing  to  be  produced  had  no  marketable  value.  A  man 
may  do  what  he  will  with  his  own,  having  due  regard  to  the  right 
of  others,  and  if  he  chooses  to  erect  a  monument  to  his  caprice  or  folly 
on  his  premises,  and  employs  and  pays  another  to  do  it,  it  does  not  he 
with  a  defendant  who  has  been  so  employed  and  paid  for  building  it, 
to  say  that  his  own  performance  would  not  be  beneficial  to  the  plain- 
tiff. It  is  upon  this  general  view  of  the  subject,  that  the  ruling  of  the 
Gilb.Dam.— 2 


18  NOMINAL  DAMAGES.  (Part  J8 

court  on  the  trial  is  sought  to  be  maintained.  The  point  to  be  consider- 
ed, is  whether  the  plaintiff  in  any  sense,  actual  or  legal,  has  lost  by 
the  default  of  the  defendant  a  sum  equal  to  the  expense  of  digging 
the  well.  The  lot  embraced  in  the  lease  is  located  in  the  oil  producing 
district  of  Pennsylvania,  and  the  references  in  it  show  that  the  object 
of  the  lessee  in  taking  it,  was  to  develop  the  production  of  the  oil 
which  might  be  found  thereon.  The  contract  on  his  part  to  dig  the 
well,  so  far  as  appears  in  the  case,  if  performed,  could  result  in  no 
benefit  to  the  lessor,  except  in  the  possible  contingency,  that  after  the 
well  was  dug,  the  default  of  the  defendant  in  paying  for  the  standing 
timber  on  the  premises  according  to  his  undertaking  in  the  lease, 
might  enable  them  to  re-enter  on  the  premises.  The  whole  produc- 
tion of  the  well,  if  oil  should  be  found,  would  belong  to  the  defendant 
for  all  time,  unless  the  possible  ground  of  forfeiture  should  occitr, 
just  suggested.  If  this  contingency  happened,  it  might  be  delayed 
until  the  supply  of  oil  in  the  well  was  exhausted,  and  the  possession 
of  the  well  had  become  of  no  value.  The  loss  or  gain,  in  sinking  a 
well  was  wholly  the  defendant's.  It  may  be  conjectured  that  the  les- 
sor had  in  view  some  advantage  to  other  property  in  the  vicinity,  from 
the  prosecution  of  the  work  of  exploration  by  the  defendant.  There 
are  no  facts  shown  authorizing  this  inference,  and  such  a  ground  of 
damages,  if  averred,  would  be  speculative  and  conjectural,  and  could 
furnish  no  satisfactory  basis  for  a  recovery.  The  defendant  was  not 
paid  for  digging  a  well  for  the  plaintiff  on  his  premises.  The  well, 
when  dug,  would  be  upon  the  land  of  the  defendant,  and  its  product 
would  be  his. 

It  is  idle  to  say,  and  the  law  does  not  require  it  to  be  said,  in  face 
of  the  obvious  truth,  that  the  lessors  have  been  damaged  to  the  extent 
of  the  cost  of  digging  the  well,  by  the  defendant's  default.  Nor  does 
the  defendant  gain  any  undue  advantage.  The  lessor  had  the  right  to 
re-enter,  upon  the  default  of  the  defendant,  and  he  was  bound  to  pay 
for  the  wood  according  to  the  contract. 

It  is  not  probable  that  any  authority  can  be  found  precisely  in  point ; 
but  the  rule  which  has  been  held  by  the  English  courts  in  several  cases, 
to  the  effect  that  in  an  action  of  covenant  by  lessor  against  lessee  for 
non-repair  of  the  demised  premises  under  an  unexpired  lease,  the 
proper  measure  of  damages  is  not  the  amount  required  to  put  the 
premises  in  repair,  but  the  amount  in  which  the  reversion  is  injured 
by  the  premises  being  out  of  repair,  tends  to  support  the  conclusion 
that  the  rule  of  damages  adopted  in  this  case  was  erroneous.  Doe  v. 
Rowland,  9  Car.  &  P.  734;  Smith  v.  Post,  9  Exch.  161;  Turner  v. 
Lamb,  14  Mees.  &  W.  412 ;   Payne  v.  Champion,  16  Mees.  &  W.  541. 

The  plaintiff  was,  upon  the  proof  given,  entitled  to  nominal  damages 
only.^^ 

13  In  the  absence  of  proof  of  damage,  when  the  loss  claimed  is  pecuniary, 
only  nominal  damages  can  be  allowed.  Jones  v.  Hannovan,  55  Mo.  402  (1S74) ; 
Leeds  v.  Metropolitan  Gaslight  Co.,  90  N.  Y.  2G  (1882);  Skinner  v.  London 


Jm^ 


Part  2)  NOMINAL  DAMAGES.  19 

STATE  ex  rel.  LOWERY  v.  DAVIS  et  al. 
(Supreme  Ck)urt  of  Indiana,  1S89.    117  Ind.  307,  20  N.  E.  159.) 

Lowery  brought  this  action  to  recover  upon  the  official  bond  of  Da- 
vis, recorder  of  deeds  of  Madison  county.  The  breach  alleged  was 
that  Davis,  in  recording  a  deed  from  Lowery  to  another,  had  negligent- 
ly entered  a  stipulation  in  that  deed  that  the  grantee  should  assume 
and  pay  a  certain  mortgage  previously  made  by  Lowery,  to  the  extent 
of  $500,  as  a  stipulation  to  assume  and  pay  it  only  to  the  extent  of 
$200 ;  and,  the  land  having  been  sold  again  to  one  who  was  ignorant 
of  the  true  amount,  Lowery  had  lost  his  right  to  have  the  land  charged 
with  full  amount.  It  was  alleged  also  that  the  first  grantee  was  in- 
solvent, and  that  the  plaintiff  had  been  compelled  to  pay  the  •^.'iOO.  Up- 
on the  trial,  however,  there  was  no  proof  that  the  amount  could  not 
be  collected  from  the  grantee  who  had  assumed  it. 

Elliott,  C.  J.^*  *  *  *  ^^q  j^-y  returned  a  verdict  in  favor 
of  the  relator  for  $1,  and  his  counsel  insist  that  this  finding  decides  all 
questions  in  his  favor,  and  that,  consequently,  the  assessment  of  the 
amount  of  recovery  should  have  been  at  least  $300.  We  cannot  accept 
this  theory.  The  recorder,  who  is  guilty  of  a  breach  of  duty,  is  only 
liable  for  nominal  damages,  unless  the  plaintiff  proves  an  actual  loss. 
It  is  quite  clear,  therefore,  that  a  verdict  for  nominal  damages  docs 
not  necessarily  decide  all  material  questions  in  favor  of  the  plaintiff, 
for,  on  the  contrary,  it  really  decides  that  he  suiTcred  nothing  more 
than  a  nominal  injury.  A  plaintiff  cannot  recover  of  a  recorder  and 
the  sureties  on  his  official  bond  more  than  nominal  damages,  unless 
he  proves  an  actual  loss,  and  to  prove  this  he  must  show,  in  such  a 
case  as  this,  that  he  could  not  have  collected  the  amount  of  his  lien 
from  the  party  who  assumed  to  pay  it.  In  other  words,  where  a  re- 
corder negligently  so  records  a  deed  reserving  a  lien  as  to  make  the 
amount  of  the  lien  $200,  when  it  should  be  $500,  he  is  not  liable  be- 
yond nominal  damages,  unless  the  plaintiff  proves  that  he  cannot 
collect  tlie  full  amount  of  the  lien  from  'the  person  who  assumed  its 
payment.  If  the  person  who  undertook  to  pay  remains  liable  and 
solvent,  then  the  money  must  be  collected  from  him,  and  not  from  the 
recorder  and  his  sureties.     *     *     * 

M  A.  Co.,  14  Q.  B.  Div.  882  (1885) ;  Flint  v.  Clark,  13  Conn.  361  (1S39) ;  Browne 
V.  Price.  4  C.  B.  (N.  S.)  598  (1858). 

At  loast  nominal  damages  are  recoverable  for  breach  of  contract,  as  tlio 
plaintiff  is  injured  in  his  right  to  have  the  contract  performed.  Owen  v. 
O'Keillv.  20  aIo.  003  (1855):  Hibliard  v.  W.  U.  Tel.  Co.,  33  Wis.  5.-,S.  14  Am. 
Rep.  775  (1873) ;  Merrill  v.  W.  U.  Tel.  Co.,  78  Me.  97,  2  Atl.  847  (1880). 

1*  Part  of  the  opinion  is  omitted. 


20  NOMINAL  DAMAGES.  (Part  2 

JONES  V.  KING. 
(Supreme  Court  of  Wisconsin,  1873.     33  Wis.  422.) 

Lyon,  J.^"  This  is  an  action  for  slander.  The  complaint  charges 
the  speaking-  by  the  defendant,  to  and  concerning  the  plaintiff,  of  cer- 
tain slanderous  words,  imputing  to  the  latter  the  committing  of  divers 
criminal  offenses.  The  defendant,  by  his  answer,  denies  the  speaking 
of  some  of  the  slanderous  words  set  out  in  the  complaint,  and  admits 
the  speaking  of  others  of  them,  and  alleges,  by  way  of  mitigation,  that 
the  plaintiff  provoked  him,  by  charging  him  with  crime,  and  by  ap- 
plying to  him  grossly  insulting  epithets,  to  utter  the  language  com- 
plained of.  The  evidence  shows  that  the  parties  casually  met,  and 
engaged  in  a  conversation,  which  at  firsit  was  reasonably  good-natured, 
but  soon  became  an  angry  verbal  altercation,  in  which  vile  epithets 
and  charges  of  crime  were  freely  hurled  by  each  at  the  other.  *  *  * 
The  jury  returned  a  verdict  for  the  defendant,  upon  which,  after  a 
motion  for  a  new  trial  had  been  overruled,  judgment  was  rendered 
dismissing  the  complaint,  with  costs. 

The  plaintiff  appeals,  and  his  counsel  claims  that  there  should  have 
been  a  verdict  for  nominal  damages,  at  least,  which,  while  it  would 
have  only  carried  nominal  costs  for  the  plaintiff,  would  have  defeated 
the  defendant's  rights  to  recover  costs.  The  claim  of  the  learned 
counsel  is  doubtless  correct.  The  speaking  of  words  by  the  defendant, 
to  and  concerning  the  plaintiff,  imputing  to  him  a  criminal  offense,  as 
charged  in  the  complaint,  is  admitted  by  the  answer.  The  plaintiff 
was  therefore  entitled  to  a  verdict  for  at  least  nominal  damages,  with- 
out introducing  any  testimony,  and  without  regard  to  the  testimony 
which  was  introduced  on  the  trial;  and  such  verdict  would  have  de- 
feated the  recovery  of  costs  by  the  defendant.  It  should  be  observed 
that  the  circuit  judge  was  not  asked  to  charge,  and  did  not  directly 
charge,  the  jury  'that  the  plaintiff'  was  entitled  to  a  verdict  for  some 
damages.  He  did  not  say  to  the  jury  (as  he  well  might)  that  the 
answer  of  the  defendant  admits,  and  also  that  the  undisputed  testi- 
mony proved,  that  actionable  words  were  spoken  by  the  defendant  to 
and  concerning  the  plaintiff,  as  alleged  in  the  complaint.  But  the 
judge,  in  his  charge,  more  than  once  refers  to  the  speaking  of  such 
words,  hypothetically.  His  language  is,  "If  the  words  were  spoken," 
and  the  like.  Hence  the  verdict  is  not  in  disregard  of  the  instructions 
of  the  court.  It  must  also  be  observed  that  evidence  of  express  mal- 
ice on  the  part  of  the  defendant  seems  to  be  entirely  wanting  in  the 
case.  In  view  of  this  fact,  and  of  the  uncontradicted  testimony  on  cer- 
tain other  points  (which  it  is  unnecessary  to  specify),  we  are  perfectly 
well  satisfied  that  the  plaintiff  should  have  recovered  no  more  than 
nominal  damages.    Indeed,  we  do  not  understand  his  counsel  to  claim 

16  Part  of  the  opinion  is  omitted. 


Part  2)  NOMINAL  DAMAGES.  21 

that  he  is  entitled  'to  anything  beyond  that.  We  have  before  us,  then, 
an  action  for  slander,  in  which  the  verdict  was  for  the  defendant,  but 
should  have  been  for  the  plaintiff  for  nominal  damages  only,  and  in 
which  it  is  not  claimed  that  any  rule  of  law  has  been  violated  by  the 
court,  in  admitting  or  rejecting  testimony,  or  in  the  instructions  to 
the  jury,  or  that  the  jury  have  disregarded  the  instructions  of  the 
court,  or  have  behaved  improperly.  From  these  data  we  are  to  deter- 
mine whether  the  plaintiff  is  entitled  'to  a  new  trial  of  his  action. 

In  Laubenheimer  v.  Mann,  19  Wis.  519,  it  was  held  that  a  judgment 
of  nonsuit,    although   erroneous,   will   not  be   reversed,    if   it   appear 
that  the  plaintiff  is  only  entitled  to  nominal  damages,  if  the  case  be 
one  in  which  the  defendant  would  recover  costs,  notwithstanding  there 
is  a  judgment  for  nominal  damages  rendered  against  him.     That  was 
an  action  for  a  penalty,  and  was  within  'the  jurisdiction  of  a  justice 
of  the  peace.     Hence,  had  the  plaintiff  recovered  nominal  damages, 
the  defendant  would  have  been  entitled  to  costs,  the  same  as  upon  a 
nonsuit.     In  Mecklem  v.  Blake,  22  Wis.  495,  99  Am.  Dec.  68,  which 
w^as  an  action  to  recover  damages  for  alleged  breaches  of  the  covenants 
of  seisin  and  against  incumbrances  in  a  deed  of  land,  the  court  follow- 
ed the  decision  in  Laubenheimer  v.  Mann,  and  refused  to  reverse  a 
judgment   dismissing   the  complaint,    although    it   appeared   that   the 
plaintiff  was  entitled  to  recover,  but  only  to  recover  nominal  damages. 
The  fact  was  entirely  overlooked  'that  such  damages,  in  that  action, 
would  have  entitled  the  plaintiff  to  costs.    Hence,  in  Eaton  v.  Lyman, 
30  Wis.  42  (which  was  also  an  action  on  the  covenants  contained  in  a 
conveyance  of  real  estate),  Mecklem  v.  Blake  was  overruled  as  to  the 
point  we  are  considering;    and,  it  appearing  that  the  plaintiff*  was 
entitled   to    nominal    damages,    we    reversed    a   judgment   of   nonsuit 
against  them.    We  are  entirely  satisfied  with  this  decision,  and  believe 
tkat  it  establishes  the  correct  rule  in  all  actions  sounding  in  contract 
to  which  it  is  applicable.    But  there  is  a  class  of  actions  denominated 
in  the  books  ''hard  actions,"  to  which  a  different  rule  has  been  applied 
in  numerous   cases.     Of  these  actions,  and  of  the  rules  relating  to 
new  trials  which  are  applicable  to  them,  a  learned  author  says :   "Hard 
actions  strictly  include  only  civil  proceedings,  involving  in  their  na- 
ture some  peculiar  hardship,  arising  from  the  odium  attached  to  the 
alleged  offense,  or  the  severity  of  the  punishment  w-hich  the  law  in- 
flicts on  the  offender  in  the  shape  of  damages.     To  this  belong  most 
actions  arising  ex  delicto.    Trespass,  slander,  libel,  seduction,  malicious 
prosecution,   criminal  conversation,   deceit,   gross   negligence,   actions 
upon  the  statute,  or  qui  tam  actions    prosecuted  by  informers,  and 
penal  actions,  prosecuted  by   special  public  bodies  or  the  public  at 
large,  are  ranged  under  this  head.    But  as  they  partake,  less  or  more, 
in  their  nature  and  effect,  of  prosecutions  for  criminal  oft'enses,  the 
rules  that  govern  in  granting  or  refusing  new  trials,  and  tlie  reason 
of  those  rules,  are  drawn  from  criminal  cases,  rather  than  civil."     1 
Grab.  &  W.  New    Tr.  p.  503,  c.  14.     It  is  scarcely  necessary  to  say 


22  .  NOMINAL  DAMAGES.  (Part  2 

that  in  criminal  prosecutions,  after  trial  and  verdict  for  the  defendant, 
a  new  trial  is  never  granted.  But  the  rule  is  not  as  broad  in  the  class 
of  civil  actions  mentioned  above;  yet  in  those  actions  it  is  much 
broader  in  favor  of  defendants  than  in  other  civil  actions.  In  the 
volume  last  above  cited,  we  find  the  following  statement:  "It  is  a 
general  rule,  with  but  few  exceptions,  that  in  penal,  and  what  are  de- 
nominated 'hard  actions,'  ithe  court  will  not  set  aside  the  verdict,  if 
for  the  defendant,  although  there  may  have  been  a  departure  from 
strict  law  in  the  finding  of  the  jury."  Page  353.  And,  again,  on 
page  523 :  "In  hard  actions,  a  new  trial  will  not  be  granted,  especially 
if  the  verdict  be  for  the  defendant,  although  against  evidence,  nor 
unless  some  rule  of  law  be  violated."  The  author  proves  the  correct- 
ness of  the  principles  and  rules  thus  laid  down  by  him,  by  references 
to  large  numbers  of  cases,  both  English  and  American;  and  he  satis- 
factorily demonstrates  that,  in  a  case  like  the  present  one,  a  new  trial 
cannot  be  granted  without  a  violation  of  well-settled  rules  of  law. 
Perhaps  as  satisfactory  a  statement  of  the  law  on  this  subject  as  can 
be  found  is  contained  in  Jarvis  v.  Hatheway,  3  Johns.  (N.  Y.)  180, 
3  Am.  Dec.  473.  Judge  Spencer  there  says :  "In  penal  actions,  in 
actions  for  a  libel  and  for  defamation,  and  other  actions  vindictive  in 
their  nature,  unless  some  rule  of  law  be  violated  in  'the  admission  or 
rejection  of  evidence,  or  in  the  exposition  of  the  law  to  the  jury,  or 
there  has  been  tampering  with  the  jury,  the  court  will  not  give  a  sec- 
ond chance  of  success."  Add  to  these  other  conditions  which  exist 
in  this  case,  to  wit,  that,  at  the  most,  the  plaintiff  is  only  entitled  to 
recover  nominal  damages,  and  that  the  jury  have  not  disregarded  the 
instructions  of  the  court,  and  there  can  be  no  doubt  whatever  that 
the  motion  for  a  new  trial  was  properly  denied  by  the  court  be- 
low.    *     *     *  18 

16 Adams.  J.,  in  Watson  v.  Van  Meter,  43  Iowa,  76  (1876): 
"In  Hudspeth  v.  Allen,  26  Ind.  167,  the  court  said:  *An  omission  to  assess 
nominal  damages,  where  there  is  a  mere  technical  right  tp  recover,  is  no  ground 
for  a  new  trial,'  citing  Jennings  v.  Loring,  5  Ind.  -;56.  The  same  doctrine  is 
held  in  .Johnson  v.  Weedman,  4  Scam.  (111.)  497.  It  is  true  that  if  the  iilain- 
tiff  is  entitled  to  nominal  damages  for  the  purpose  of  establishing  a  permanent 
right,  and  the  jury  fail  to  assess  such  damages,  a  new  trial  should  be  grant- 
ed. Plumleigh  v.  Dawson,  1  Oilman,  552,  41  Am.  Dec.  199.  The  appellant's 
counsel  claim  that  the  nominal  damages  to  which  she  is  entitled  are  neces- 
sary to  the  determination  of  a  question  of  permanent  right.  They  say  that 
by  an  undisputed  user  for  ten  years  appellee  would  obtain  an  easement,  and 
that  judgment  for  nominal  damages  is  one  of  the  ways  pointed  out  by  law 
by  which  appellant  can  dispute  such  user,  and  prevent  the  same  from  ripening 
into  an  easement.  This  position  would  be  well  taken  if  the  defendant,  by 
his  prior  proceeding  in  the  circuit  court  of  April,  1874,  did  not  obtain  an  ease- 
ment; but  we  have  already  held  that,  notwithstanding  the  jury  in  that  pro- 
ceeding allowed  this  plaintiff  no  damages,  the  defendant  did  obtain  an  ease- 
ment." 

See,  also,  Flureau  v.  Thomhill,  post,  p.  562;  Bain  v.  Fothergill,  post,  p. 
564 ;  Cohn  v.  Norton,  post,  p.  593,  note ;  Lowe  v.  Turpie,  post,  p.  594:. 


PART  III. 

LIQUIDATION  OF  DAMAGES. 


ROY  V.  DUKE  OF  BEAUFORT. 

(High  Ck)urt  of  Chancery,  1741.     2  Atk.  190.) 

The  bill  is  brought  to  be  relieved  against  a  judgment  obtained  at  law 
on  a  bond  in  the  penalty  of  ilOO  and  likewise  excessive  damages  of 
forty  pounds,  and  for  a  perpetual  injunction. 

The  plaintiff  was  jointly  bound  with  his  son  in  a  bond  in  the  penalty 
of  £100  that  the  son  should  not  commit  any  trespass  in  the  Duke's 
royalty,  by  shooting,  hunting,  fishing,  &c.  unless  with  the  license  of 
the  game-keeper,  or  in  company  with  a  qualified  person. 

The  son  aftenvards  having  catched  two  flounders,  with  an  angling 
rod,  in  the  Duke's  royalty,  the  bond  was  put  in  suit  against  the  plain- 
tiff, and  judgment  for  the  penalty.* 

Lord  Hardwicke,  Ch,^  *  *  *  j  ^j^  q£  opinion  when  these 
sort  of  bonds  are  given  by  way  of  stated  damages  between  the  parties, 
it  is  unreasonable  to  imagine  they  could  only  be  intended  as  a  bare 
security  that  the  obligor  should  not  offend  for  the  future ;  was  this 
the  case,  in  what  respect  is  a  gentleman  in  a  better  condition,  who 
has  such  a  bond,  than  he  was  before,  if,  after  he  has  obtained  judgment 
at  law,  a  court  of  equity  will  give  him  no  other  satisfaction  than  the 
bare  value  of  the  price  of  the  game  that  is  killed.     *     *     * 

[The  Lord  Chancellor,  however,  did  relieve  against  the  penalty,  be-, 
cause  the  son  was  "licensed  or  encouraged"  in  his  act  by  the  defend- 
ant's game  keeper  and  made  a  "moderate  use  of  his  liberty."] 


ASTLEY   V.  WELDON. 

(Court  of  Common  Pleas,  ISOl.    2  Bos.  &  P.  34G.) 

By  articles  of  agreement  between  the  plaintiff  and  defendant  it  was 
agreed,  on  the  part  of  the  former,  that  he  should  pay  the  latter  so  much 
per  week  to  perform  at  his  theatres,  with  her  travelling  expences  of 
removing  from  one  theatre  to  another,  except  extra  baggage ;  and 
on  the  part  of  the  defendant,  that  she  should  perform  at  the  tlieatres 

*  This  statement  Is  abridged  from  that  of  the  official  report 
1  Part  of  the  opinion  is  omitted. 

(23) 


ecrw  ■ 


24  LIQUIDATION  OF  DAMAGES.  (Part   3 

such  things  as  she  should  be  required  by  the  plaintiff,  and  attend  at 
the  theatre  beyond  the  usual  hours  on  any  emergency,  and  at  rehears- 
als or  be  subject  to  such  fines  as  are  established  at  the  'theatres,  and 
be  at  the  theatre  half  an  hour  before  the  performances  began,  and  abide 
by  the  regulations  of  the  theatres,  and  pay  all  fines ;  and  it  was  agreed 
by  both  parties,  that  "either  neglecting  to  perform  that  agreement 
should  pay  to  the  other  i200."  Assumpsit  upon  this  agreement,  stat- 
ing several  breaches,  and  concluding  to  the  plaintiff's  damage  of 
£200. 

Verdict  for  i20. 

Lord  Eldon,  C.  J.  When  this  cause  came  before  me  at  nisi  prius, 
I  felt  as  I  have  often  done  before  in  considering  the  various  cases  on 
this  head,  much  embarrassed  in  ascertaining  the  principle  upon  which 
those  cases  were  founded:  but  it  appeared  to  me,  that  the  articles 
in  this  case  furnished  a  more  satisfactory  ground  for  determining 
whether  the  sum  of  money  therein  mentioned  ought  to  be  considered 
in  the  nature  of  a  penalty  or  liquidated  damages  than  most  others 
which  I  had  met  with.  What  was  urged  in  the  course  of  the  argu- 
ment has  ever  appeared  to  me  to  be  the  clearest  principle,  viz.  that 
where  a  doubt  is  stated  whether  the  sum  inserted  be  intended  as  a  penal- 
ty or  not,  if  a  certain  damage  less  than  that  sum  is  made  payable  upon 
the  face  of  the  same  instrument,  in  case  the  act  intended  to  be  pro- 
hibited be  done,  that  sum  shall  be  construed  to  be  a  penalty.  The  case 
of  Sloman  v.  Walter,  1  Brown,  ch,  cas.  418,  did  not  stand  in  need 
of  this  principle;  for  there,  by  the  very  form  of  the  instrument,  the 
sum  appeared  to  be  a  penalty;  in  which  case  a  court  of  equity  could 
never  consider  it  as  liquidated  damages,  but  must  direct  an  issue  of 
quantum  damnificatus.  A  principle  has  been  said  to  have  been  stated 
in  several  cases,  the  adoption  of  which  one  cannot  but  lament,  namely, 
that  if  the  sum  would  be  very  enormous  and  excessive  considered  as 
liquidated  damages,  it  shall  be  taken  to  be  a  penalty,  though  agreed  to 
be  paid  in  the  form  of  contract.  This  has  been  said  to  have  been  stated 
in  Rolfe  v.  Peterson,  6  Brown  Pari.  Cas.  470,  where  the  tenant  was 
restrained  from  stubbing  up  timber.  But  nothing  can  be  more  ob- 
vious, than  that  a  person  may  set  an  extraordinary  value  upon  a  par- 
ticular piece  of  land,  or  wood,  on  account  of  the  amusement  which 
it  may  afford  him.  In  this  country,  a  man  has  a  right  to  secure  to 
himself  a  property  in  his  amusements:  and  if  he  choose  to  stipulate 
for  io.  or  £50.  additional  rent  for  every  acre  of  furze  broken  up,  or 
for  any  given  sum  of  money  upon  every  load  of  wood  cut  and  stubbed 
up,  I  see  nothing  irrational  in  such  a  contract;  and  it  appears  to  me 
extremely  difficult  to  apply  with  propriety  the  word  "excessive"  to 
the  terms  in  which  parties  choose  to  contract  with  each  other.  There 
is,  indeed,  a  class  of  cases,  in  which  courts  of  equity  have  rescinded 
contracts  on  the  ground  of  their  being  unequal.  It  has  been  held, 
however,  that  mere  inequality  is  not  a  ground  of  relief ;  the  inequality 
must  be  so  gross  that  a  man  would  start  at  the  bare  mention  of  it. 


Part   3)  LIQUIDATION   OF   DAMAGES.  25 

Necessity  in  these  cases  seems  to  have  obhged  the  courts  to  admit  a 
principle  nearly  as  loose  as  that  to  which  I  have  before  alluded.  But 
with  respect  to  the  case  of  Ponsonby  v.  Adams,  6  Brown  Pari.  Cas. 
417,  the  landlord  may  have  set  a  value  upon  the  residence  of  a  particu- 
lar tenant  on  his  estate;  and  why  should  he  not  upon  that  ground 
have  stipulated,  that  if  such  tenant  should  cease  to  reside  there  his 
rent  should  rise  to  iloO.?  Both  in  Rolfe  and  Peterson  and  in  Pon- 
sonby V.  Adams,  I  should  have  said,  that  what  was  matter  of  contract 
bottomed  on  a  g-ood  consideration,  should  not  be  looked  upon  as 
penalty,  but  should  be  considered  as  rent  reserved,  or  liquidated  dam- 
ages. In  Lowe  v.  Peers,  4  Burr.  2229,  it  is  quite  clear,  that  the  breach 
of  promise  of  marriage  was  to  be  compensated  for  in  damages :  it  was 
a  contract  that  in  case  the  party  failed  to  perform  his  promise,  he 
should  pay  the  sum  of  ilOOO.  The  case  of  Fletcher  v.  Dyche,  4  Term 
Rep.  32,  is  very  strongly  to  the  present  purpose.  In  that  case,  a 
bond  in  a  penal  sum  was  conditioned  lo  perform  certain  work  within 
a  certain  time,  or  to  pay  ilO.  for  every  week  beyond  that  time.  The 
£10.  per  week  was  secured  by  the  penalty  of  the  bond ;  and  to  have 
said,  that  one  term  of  a  contract  secured  by  a  penal  sum,  should  also 
be  a  penal  sum,  would  have  been  absurd.  Indeed,  Lord  Hardwicke,  in 
Roy  V  The  Duke  of  Beaufort,  2  Atk.  190,  was  of  opinion,  that  a  per- 
son who  had  entered  into  a  bond  with  a  penalty  of  ilOO.  if  he  poached, 
must  have  paid  the  £100.  if  he  had  committed  any  act  which  amounted 
to  poaching.  But  suppose  the  Duke  had  taken  a  bond  in  a  penalty 
of  £100.  with  condition  that  the  obligor  should  not  kill  a  partridge, 
or  if  he  did,  that  he  should  pay  £  5.,  in  that  case  it  is  most  clear,  that 
the  £5.  must  have  been  considered  as  liquidated  damages.  With 
respect  to  the  case  of  Hardy  v.  Martin,  1  Brown  Chan.  Cas.  419,  I  do 
not  understand  why  one  brandy  merchant  who  purchases  the  lease  and 
good  will  of  a  shop  from  another  may  not  make  it  matter  of  agreement, 
that  if  the  vendor  trade  in  brandy  within  a  certain  distance,  he  shall 
pay  £600. ;  and  why  the  party  violating  such  agreement  should  not  be 
bound  to  pay  the  sum  agreed  for,  though  if  such  agreement  be  enter- 
ed into  in  the  form  of  a  bond  with  a  penalty,  it  may  perhaps  make 
a  difference.  I  much  wish  that  the  principle  laid  down  by  Lord 
Somers  in  Prec.  in  Chan,  had  been  adhered  to.  Let  us  then  see  what 
this  case  amounts  to.  It  was  contended  at  the  trial,  that  the  last 
clause  is  not  in  the  form  of  a  penal  bond.  It  is  thus  "and  lastly,  it 
is  hereby  agreed,  that  either  party  failing  to  perform  their  under- 
taking shall  pay  to  the  other  £200."  Prima  facie  this  certainly  is  con- 
tract, and  not  penalty ;  but  we  must  look  to  the  whole  instrument. 
In  consideration  of  the  defendant's  services  the  plaintiff  undertakes 
to  pay  her  £1.  lis.  6d.  per  week,  and  also  her  travelling  expences. 
It  would  be  absurd  to  hold  that,  because  the  £1.  lis.  6d.  is  a  liquidated 
sum,  therefore  the  plaintiff  could  not  be  called  upon  for  more,  and 
yet  that  in  consequence  of  his  non-payment  of  the  defendant's  travel- 
ling expences,  he  should  be  liable  to  the  whole  sum  of  £200.  because 


26  LIQUIDATION  OF  DAMAGES.  (Part   3 

those  expences  are  not  ascertained.  Again,  there  are  many  instances 
of  the  defendant's  misconduct,  which  are  made  the  subjects  of  specif- 
ic fines  by  the  laws  of  the  theatre.  Are  we  then  to  hold,  that  if  the 
defendant  happens  to  offend  in  a  case  which  has  been  so  provided  for 
by  those  laws,  she  shall  pay  only  2s.  6d.  or  5s.,  but  if  she  offend  in  a 
case  which  has  not  been  so  provided  for,  she  shall  pay  i200.  I  can 
find  nothing  in  these  articles,  which  can  satisfy  my  mind  judicially, 
that  the  £200.  is  to  be  paid  in  one  case  and  not  in  the  other.  The 
clause  is  general,  and  contains  no  exception.  If  that  be  so,  the  case  of 
Fletcher  v.  Dyche  is  an  authority  strongly  in  point.  It  therefore 
does  appear  to  me,  that  the  true  effect  of  this  agreement  is,  to 
give  the  plaintiff  his  option,  either  to  proceed  upon  'the  covenants 
toties  quoties,  or  upon  the  first  breach  to  proceed  at  once  for  the  £200. 
out  of  which  he  may  be  satisfied  for  the  damage  actually  sustained,  and 
which  may  stand  as  a  security  for  future  breaches.'' 


KEMBLE  V.  FARREN. 
(C!ourt  of  Common  Pleas,  1829.     6  Bing.  141.) 

TiNDAL,  C.  J.  This  is  a  rule  which  calls  upon  the  defendant  to  show 
cause  why  the  verdict  which  has  been  entered  for  the  plaintiff  for 
£750.,  should  not  be  increased  to  £1000. 

The  action  was  brought  upon  an  agreement  made  between  the  plain- 
tiff and  the  defendant,  whereby  the  defendant  agreed  to  act  as  a  prin- 
cipal comedian  at  the  Theatre  Royal,  Covent  Garden,  during  the  four 
then  next  seasons,  commencing  October,  1828,  and  also  to  conform  in 
all  things  to  the  usual  regulations  of  the  said  Theatre  Royal,  Covent 
Garden;  and  the  plaintiff  agreed  to  pay  the  defendant  £3.  6s.  8d. 
every  night  on  which  the  theatre  should  be  open  for  theatrical  per- 
formances, during  the  next  four  seasons,  and  that  the  defendant  should 
be  allowed  one  benefit  night  during  each  season,  on  certain  terms  there- 
in specified.  And  the  agreement  contained  a  clause,  that  if  either  of 
the  parties  should  neglect  or  refuse  to  fulfil  the  said  agreement,  or 
any  part  thereof,  or  any  stipulation  therein  contained,  such  party 
should  pay  to  the  other  the  sum  of  £1000.,  to  which  sum  it  was  there- 
by agreed  that  the  damages  sustained  by  any  such  omission,  neglect,  or 
refusal,  should  amount;  and  which  sum  was  thereby  declared  by  the 
said  parties  to  be  liquidated  and  ascertained  damages,  and  not  a  penal- 
ty or  penal  sum,  or  in  the  nature  thereof. 

The  breach  alleged  in  the  declaration  was,  that  the  defendant  re- 
fused to  act. during  the  second  season,  for  which  breach,  the  jury, 
upon  the  trial,  assessed  the  damages  at  £750. ;  which  damages  the 
plaintiff  contends  ought  by  the  terms  of  the  agreement  to  have  been 
assessed  at  £1000. 

2  The  opinions  of  Heath,  Booker  and  Ohambre,  JJ.,  are  omittedL 


Part   3)  LIQUIDATION   OF  DAMAGES.  27 

It  is,  undoubtedly,  difficult  to  suppose  any  words  more  precise  or 
explicit  than  those  used  in  the  agreement ;  the  same  declaring-  not 
only  affirmatively  that  the  sum  of  ilOOO.  should  be  taken  as  liquidated 
damages,  but  negatively  also  that  it  should  not  be  considered  as  a 
penalty,  or  in  the  nature  thereof.  And  if  the  clause  had  been  limited 
to  breaches  which  were  of  an  uncertain  nature  and  amount,  we  should 
have  thought  it  would  have  had  the  effect  of  ascertaining  the  damages 
upon  any  such  breach  at  £1000.  For  we  see  nothing  illegal  or  unrea- 
sonable in  the  parties,  by  their  mutual  agreement,  settling  the  amount 
of  damages,  uncertain  in  their  nature,  at  any  sum  upon  which  they 
may  agree. 

In  many  cases,  such  an  agreement  fixes  that  which  is  almost  impos- 
sible to  be  accurately  ascertained ;  and  in  all  cases,  it  saves  the  expense 
and  difficulty  of  bringing  witnesses  to  that  point.  But  in  the  present 
case,  the  clause  is  not  so  confined ;  it  extends  to  the  breach  of  any 
stipulation  by  either  party.  If,  therefore,  on  the  one  hand,  the  plain- 
tiff had  neglected  to  make  a  single  payment  of  £3.  6s.  8d.  per  day,  or 
on  the  other  hand,  the  defendant  had  refused  to  conform  to  any  usual 
regulation  of  the  theatre,  however  minute  or  unimportant,  it  must 
have  been  contended  that  the  clause  in  question,  in  either  case,  would 
have  given  the  stipulated  damages  of  £1000.  But  that  a  very  large 
sum  should  become  immediately  payable,  in  consequence  of  the  non 
payment  of  a  very  small  sum,  and  that  the  former  should  not  be 
considered  as  a  penalty,  appears  to  be  a  contradiction  in  terms ;  the 
case  being  precisely  that  in  which  courts  of  equity  have  always  re- 
lieved, and  against  which  courts  of  law  have,  in  modern  times,  endeav- 
oured to  relieve,  by  directing  juries  to  assess  the  real  damages  sus- 
tained by  the  breach  of  the  agreement.  It  has  been  argued  at  the 
bar,  that  the  liquidated  damages  apply  to  those  breaches  of  the  agree- 
ment only  which  are  in  their  nature  uncertain,  leaving  those  which 
are  certain  to  a  distinct  remedy,  by  the  verdict  of  a  jury. '  But  we  can 
only  say,  if  such  is  the  intention  of  the  parties,  they  have  not  express- 
ed it ;  but  have  made  the  clause  relate,  by  express  and  positive  terms 
to  all  breaches  of  every  kind.  We  cannot,  therefore,  distinguish  this 
case,  in  principle,  from  that  of  Astley  v.  Weldon,  2  B.  &  P.  346,  in 
which  it  was  stipulated,  that  either  of  the  parties  neglecting  to  per- 
form 'the  agreement  should  pay  to  the  other  of  them  the  full  sum  of 
£200.,  to  be  recovered  in  his  majesty's  courts  at  Westminster.  Here 
there  was  a  distinct  agreement,  that  the  sum  stipulated  should  be 
liquidated  and  ascertained  damages :  there  were  clauses  in  the  agree- 
ment, some  sounding  in  uncertain  damages,  others  relating  to  certain 
pecuniary  payments ;  the  action  was  brought  for  the  breach  of  a 
clause  of  an  uncertain  nature;  and  yet  it  was  held  by  the  court,  that 
for  this  very  reason  it  would  be  absurd  to  construe  the  sum  inserted  in 
the  agreement  as  liquidated  damages,  and  it  was  held  to  be  a  penal 
sum  only.  As  this  case  appears  to  us  to  be  decided  on  a  clear  and 
intelligible  principle,  and  to  apply  to  that  under  consideration,  we  think 


28  LIQUIDATION   OF  DAMAGES.  (Part   3 

it  right  to  adhere  to  it,  and  this  makes  it  unnecessary  to  consider  the 
subsequent  cases,  which  do  not  in  any  way  break  in  upon  it.     The 
consequence  is,  we  think  the  present  verdia  should  stand,  and  the 
rule  for  increasing  the  damages  be  discharged. 
Rule  discharged.^ 


ATKYNS  V.  KINNIER. 

(Court  of  Exchequer,  1S50.     L.  R,  4  Exch.  776.) 

Action  of  covenant.  The  defendant  covenanted,  after  the  expiratiort 
of  a  partnership  then  being  formed  with  the  plaintiff,  that  he  wcnld 
not  at  any  time  practice  the  profession  of  surgeon,  accoucheur  or 
apothecary  at  No.  28  Dorset-Crescent  or  within  two  and  one-half 
miles  thereof,  nor  reside  within  such  distance,  and  lihat  in  case  he 
infringed  such  stipulation,  he  would  "pay  the  sum  of  £1000  as  and 
for  liquidated  damages  and  not  by  way  of  a  penalty."  It  appeared 
that  on  the  expiration  of  the  partnership,  the  defendant  went  to  reside 
at  No.  44  Trinity-Square,  Southwark.  His  residence  was  more  than^ 
two  and  one-half  miles  from  No.  28  Dorset-Crescent  if  measured  by 
the  public  thoroughfare  most  frequented  by  carriages,  but,  if  measured 
by  another  public  thoroughfare  along  which  carriages  seldom  passed, 
it  was  a  few  feet  within  two  miles  and  a  half.  There  was  no  evidence 
that  the  plaintiff  had  sustained  any  damage  by  reason  of  such  resi- 
dence and  no  allegation  appeared  that  the  defendant  had  engaged 
in  practice.  The  jury  under  the  direction  of  Rolfe,  B.,  found  a  verdict 
for  the  plaintiff  for  ilOOO,  leave  being  reserved  to  the  defendant  to 
move  to  reduce  the  damages  to  one  shilling. 

Pollock,  C.  B.*  There  will  be  no  rule.  We  are  to  collect  the 
meaning  of  the  parties  to  the  deed  from  the  terms  which  they  have 
used.  Now  the  stipulation  is  express,  that  if  the  defendant  shall  prac- 
tice or  reside  within  two  miles  and  a  half  from  No.  28,  Dorset-Cres- 
cent, measuring  by  the  usual  streets,  he  shall  pay  the  plaintiff  ilOOO. 
Here  the  defendant  did  reside  within  that  distance,  measuring  by 
one  of  the  usual  ways,  though  he  was  beyond  it  according  to  another. 
I  can  conceive  many  cases  where  what  may  be  called  private  policy 
may  render  it  necessary  for  a  party  to  guard  against  something  which 
may  be  easily  converted  into  a  means  of  damage, — not  because  the 
act  is  of  itself  injurious,  but  because  it  is  a  sort  of  guard  or  fence,  to 
prevent  something  else  which  is  injurious  from  being  done.     *     *     * 

Parke,  B.  *  *  *  The  remaining  question  is,  whether  the  plain- 
tiff is  entitled  to  recover  the  full  amount  of  ilOOO.    The  rule  of  law,  as 

3  See,  also,  Horner  v.  Flintoff,  9  Mees.  &  W.  678  (1842)  ;  Duckworth  v.  Al- 
lison, 1  Mees.  &  W.  412  (1836);  Law  v.  Local  Board  [1892]  1  Q.  B.  Div.  127; 
Legge  V.  Harlock,  12  Q.  B.  101.5  (1848). 

*  Only  parts  of  the  opinions  of  Pollock,  C.  B.,  and  Parke,  B.,  are  here  given,^ 
and  the  statement  of  facts  is  rewritten. 


VCH'' 


Part   3)  LIQUIDATION   OF   DAMAGES.  29 

laid  down  in  Kemble  v.  Farren,  6  Bing.  141  (which  I  cannot  help 
thinking  was  somewhat  stretched),  was,  that  although  the  parties  used 
the  words  "liquidated  damages,"  yet,  when  the  context  was  looked  at, 
it  was  impossible  to  say  that  they  intended  that  the  amount  named 
should  be  other  than  a  penalty,  inasmuch  as  the  agreement  contained 
various  stipulations,  some  of  which  were  capable  of  being  measured 
by  a  precise  sum,  and  others  not;  as,  for  instance,  the  plaintiff  was  to 
pay  the  defendant  a  certain  weekly  salary,  which  was  capable  of  being 
strictly  measured,  and  was  far  below  £1000 ;  therefore,  upon  a  reason- 
able construction  of  the  covenant,  the  words  "liquidated  damages"  were 
to  be  rejected,  and  the  amount  treated  as  a  penalty.  That  decision 
has  since  been  acted  on  in  several  cases,  and  I  do  not  mean  to  dispute 
its  authority.  Therefore,  if  a  party  agrees  to  pay  £1000  on  several 
events,  all  of  which  are  capable  of  accurate  valuation,  the  sum  must 
be  construed  as  a  penalty,  and  not  as  liquidated  damages.  But  if  there 
be  a  contract  consisting  of  one  or  more  stipulations,  the  breach  of 
which  cannot  be  measured,  then  the  parties  must  be  taken  to  have 
meant  that  the  sum  agreed  on  was  to  be  liquidated  damages  and  not  a 
penalty.  In  this  case  there  is  no  pecuniary  stipulation  for  which  a  sum 
certain  of  less  amount  than  £1000  is  to  be  paid,  but  all  the  stipulations 
are  of  uncertain  value.  Possibly  this  may  have  been  a  very  imprudent 
contract  for  the  defendant  to  make;  but  with  that  we  have  noth- 
ing to  do.  Upon  the  true  construction  of  the  deed,  the  amount  is  pay- 
able by  way  of  liquidated  damages,  and  not  as  a  penalty. 


JAQUITH  V.  HUDSON. 
(Supreme  Court  of  Michigan,  1S5S.    5  Micli.  123.) 

The  action  w^as  by  Jaquith  against  Hudson  on  a  promissory  note. 
Hudson,  by  way  of  counterclaim,  set  up  that  on  the  dissolution  of  a 
partnership  between  himself  and  the  plaintiff,  Jaquith  had  agreed  that 
he  would  not  "engage  in  the  mercantile  business  in  Trenton  for  the 
space  of  three  years  from  this  date  upon  the  forfeiture  of  the  sum  of 
$1000  to  be  collected  by  the  said  Hudson  as  his  damages,"  but  that 
Jaquith,  in  violation  of  this  agreement,  had  entered  into  the  mercantile 
business  in  Trenton  within  80  rods  of  the  old  stand  of  Hudson  &  Ja- 
quith and  had  continued  in  such  business  ever  since.  The  jury  allow- 
ed the  defendant  as  his  damages  the  sum  of  $1000  and  the  plaintiff 
appealed. 

CiiRisTiANCY,  J.6  *  *  *  The  second  exception  raises  the  single 
question.  Whether  the  sum  of  one  thousand  dollars,  mentioned  in  the 
covenant  of  Jaquith  not  to  go  into  business  in  Trenton,  is  to  be  con- 
strued as  a  penalty,  or  as  stipulated  damages — the  plaintiff'  in  error 

6  Part  of  the  opinion  is  omitted,  and  tiie  statement  of  facts  Is  rewritten. 


30  LIQUIDATION  OF  DAMAGES.  (Part   3 

insisting  it  should  be  construed  as  the  former,  the  defendant  as  the 
latter. 

We  shall  not  attempt  here  to  analyze  all  the  decided  cases  upon  the 
subject,  which  were  read  and  cited  upon  the  argiunent,  and  which,  with 
others,  have  been  examined.  It  is  not  to  be  denied  that  there  is  some 
conflict,  and  more  confusion,  in  the  cases — judges  have  been  long  and 
constantly  complaining  of  the  confusion  and  want  of  harmony  in  the 
decisions  upon  this  subject.  But,  while  no  one  can  fail  to  discover  a 
very  great  amount  of  apparent  conflict,  still  it  will  be  found,  on  ex- 
amination, that  most  of  the  cases,  however  conflicting  in  appearance, 
have  yet  been  decided  according  to  the  justice  and  equity  of  the  par- 
ticular case.  And  while  there  are  some  isolated  cases  (and  they  are 
but  few),  which  seem  to  rest  upon  no  very  intelligible  principle,  it  will 
be  found,  we  think,  that  the  following  general  principles  may  be  con- 
fidently said  to  result  from,  and  to  reconcile,  the  great  majority  of  the 
cases,  both  in  England  and  in  this  country: 

First.  The  law,  following  the  dictates  of  equity  and  natural  justice, 
in  cases  of  this  kind,  adopts  the  principle  of  just  compensation  for  the 
loss  or  injury  actually  sustained;  considering  it  no  greater  violation 
of  this  principle  to  confine  the  injured  party  to  the  recovery  of  less, 
than  to  enable  him  by  the  aid  of  the  court,  to  extort  more.  It  is  the 
application,  in  a  court  of  law  of  that  principle  long  recognized  in 
courts  of  equity,  which,  disregarding  the  penalty  of  the  bond,  gives 
only  the  damages  actually  sustained.  This  principle  may  be  stated,  in 
other  words,  to  be.  That  courts  of  justice  will  not  recognize  or  en- 
force a  contract,  or  any  stipulation  of  a  contract,  clearly  unjust  and  un- 
conscionable ;  a  principle  of  common  sense  and  common  honesty  so 
obviously  in  accordance  with  the  dictates  of  justice  and  sound  policy, 
as  to  make  it  rather  matter  of  surprise  that  courts  of  law  had  not  al- 
ways, and  in  all  cases,  adopted  it  to  the  same  extent  as  courts  of  equi- 
ty. And,  happily  for  the  purposes  of  justice,  the  tendency  of  courts 
of  law  seems  now  to  be  towards  the  full  recognition  of  the  principle, 
in  all  cases. 

This  principle  of  natural  justice,  the  courts  of  law,  following  courts 
of  equity,  have,  in  this  class  of  cases,  adopted  as  the  law  of  the  con- 
tract; and  they  will  not  permit  the  parties  by  express  stipulation,  or 
any  form  of  language,  however  clear  the  intent,  to  set  it  aside;  on  the 
familiar  ground,  "conventus  privatorum  non  potest  publico  juri  de- 
rogare," 

But  the  court  will  apply  this  principle,  and  disregard  the  express 
stipulation  of  parties,  only  in  those  cases  where  it  is  obvious  from  the 
contract  before  them,  and  the  whole  subject-matter,  that  the  principle 
of  compensation  has  been  disregarded,  and  that  to  carry  out  the  ex- 
press stipulation  of  the  parties,  would  violate  this  principle,  which 
alone  the  court  recognizes  as  the  lav/  of  the  contract. 

The  violation,  or  disregard,  of  this  principle  of  compensation,  may 
appear  to  the  court  in  various  ways, — from  the  contract,  the  sum  men- 


Part    3)  LIQUIDATION   OF  DAMAGES.  31 

tioncd,  and  the  subject-matter.  Thus,  where  a  larg^e  sum  (say  one 
thousand  dollars)  is  made  payable  solely  in  consequence  of  the  non- 
payment of  a  much  smaller  sum  (say  one  hundred  dollars),  at  a  cer- 
tain day ;  or  where  the  contract  is  for  the  performance  of  several  stip- 
ulations of  very  different  degrees  of  importance,  and  one  large  sum 
is  made  payable  on  the  breach  of  any  one  of  them,  even  the  most 
trivial,  the  damages  for  which  can,  in  no  reasonable  probability,  amount 
to  that  sum:  in  the  first  case,  the  court  must  see  that  the  real  dam- 
age is  readily  computed,  and  that  the  principle  of  compensation  has 
been  overlooked,  or  purposely  disregarded :  in  the  second  case,  though 
there  may  be  more  difficulty  in  ascertaining  the  precise  amount  of 
damage,  yet,  as  the  contract  exacts  the  same  large  sum  for  the  breach 
of  a  trivial  or  comparatively  unimportant  stipulation,  as  for  that  of 
the  most  important,  or  of  all  of  them  together,  it  is  equally  clear  that 
the  parties  have  wholly  departed  from  the  idea  of  just  compensation, 
and  attempted  to  fix  a  rule  of  damages  which  the  law  will  not  recognize 
or  enforce. 

We  do  not  mean  to  say  that  the  principle  above  stated  as  deducible 
from  the. cases,  is  to  be  found  generally  announced  in  express  terms, 
in  the  language  of  the  courts;  but  it  will  be  found,  we  think,  to  be 
necessarily  implied  in,  and  to  form  the  only  rational  foundation  for, 
all  that  large  class  of  cases  which  have  held  the  sum  to  be  in  the 
nature  of  a  penalty,  notwithstanding  the  strongest  and  most  explicit 
declarations  of  the  parties  that  it  was  intended  as  stipulated  and  as- 
certained damages. 

It  is  true,  the  courts  in  nearly  all  of  these  cases  profess  to  be  con- 
struing the  contract  with  reference  to  the  intention  of  the  parties,  as 
if  for  the  purpose  of  ascertaining  and  giving  effect  to  that  intention; 
yet  it  is  obvious  from  these  cases,  that  wherever  it  has  appeared  to  the 
court,  from  the  face  of  the  contract  and  the  subject-matter  that  the 
sum  was  clearly  too  large  for  just  compensation,  here,  while  they  will 
allow  any  form  of  words,  even  those  expressing  the  direct  contrary, 
to  indicate  the  intent  to  make  it  a  penalty,  yet  no  form  of  words,  no 
force  of  language,  is  competent  to  the  expression  of  the  opposite  in- 
tent. Here,  then,  is  an  intention  incapable  of  expression  in  words ; 
and  as  all  written  contracts  must  be  expressed  in  words,  it  would  seem 
to  be  a  mere  waste  of  time  and  effort  to  look  for  such  an  intention  in 
such  a  contract.  And  as  the  question  is  between  two  opposite  intents 
only,  and  the  negation  of  the  one  necessarily  implies  the  existence  of 
the  other,  there  would  seem  to  be  no  room  left  for  construction  with 
reference  to  the  intent.  It  must,  then,  be  manifest  that  the  intention 
of  the  parties  in  such  cases  is  not  the  governing  consideration. 

But  some  of  the  cases  attempt  to  justify  this  mode  of  construing  the 
contract  with  reference  to  the  intent,  by  declaring,  in  substance,  that 
though  the  language  is  the  strongest  which  could  be  used  to  evince  the 
intention  in  favor  of  stipulated  damages,  still,  if  it  appear  clearly,  by 
reference  to  the  subject-matter,  that  the  parties  have  made  the  stipula- 


32  LIQUIDATION  OF  DAMAGES.  (Part   3 

tion  without  reference  to  the  principle  of  just  compensation,  and  so 
excessive  as  to  be  out  of  all  proportion  to  the  actual  damage,  the  court 
must  hold  that  they  could  not  have  intended  it  as  stipulated  damages, 
though  they  have  so  expressly  declared.  See,  as  an  example  of  this 
class  of  cases,  Kemble  v.  Farren,  6  Bing.  141. 

Now  this,  it  is  true,  may  lead  to  the  same  result  in  the  particular 
case,  as  to  have  placed  the  decision  upon  the  true  ground;  viz.,  that 
though  the  parties  actually  intended  the  sum  to  be  paid,  as  the  damages 
agreed  upon  between  them,  yet  it  being  clearly  unconscionable,  the 
Court  would  disregard  the  intention,  and  refuse  to  enforce  the  stipula- 
tion. But,  as  a  rule  of  construction,  or  interpretation  of  contracts,  it  is 
radically  vicious,  and  tends  to  a  confusion  of  ideas  in  the  construction 
of  contracts  generally.  It  is  this,  more  than  anything  else,  which  has 
produced  so  much  apparent  conflict  in  the  decisions  upon  this  whole 
subject  of  penalty  and  stipulated  damages.  It  sets  at  defiance  all 
rules  of  interpretation,  by  denying  the  intention  of  the  parties  to  be 
what  they,  in  the  most  unambiguous  terms,  have  declared  it  to  be,  and 
finds  an  intention  directly  opposite  to  that  which  is  clearly  expressed — 
"divinatio,  non  interpretatio  est,  quae  omnino  recedit  a  litera." 

Again  the  attempt  to  place  this  question  upon  the  intention  of  the 
parties,  and  to  make  this  the  governing  consideration,  necessarily  im- 
plies that,  if  the  intention  to  make  the  sum  stipulated  damages  should 
clearly  appear,  the  court  would  enforce  the  contract  according  to  that 
intention.  To  test  this,  let  it  be  asked,  Whether,  in  such  a  case,  if  it 
were  admitted  that  the  parties  actually  intended  the  sum  to  be  consid- 
ered as  stipulated  damages,  and  not  as  a  penalty,  would  a  court  of  law 
enforce  it  for  the  amount  stipulated  ?  Clearly,  they  could  not,  without 
going  back  to  the  technical  and  long  exploded  doctrine  which  gave  the 
whole  penalty  of  the  bond,  without  reference  to  the  damages  actually 
sustained.  They  would  thus  be  simply  changing  the  names  of  things, 
and  enforcing,  under  the  name  of  stipulated  damages,  what  in  its 
own  nature  is  but  a  penalty. 

The  real  question  in  this  class  of  cases  will  be  found  to  be,  not  what 
the  parties  intended,  but  whether  the  sum  is,  in  fact,  in  the  nature  of 
a  penalty;  and  this  is  to  be  determined  by  the  magnitude  of  the  sum, 
in  connection  with  the  subject-matter,  and  not  at  all  by  the  words  or 
the  understanding  of  the  parties.  The  intention  of  the  parties  can- 
not alter  it.  While  courts  of  law  gave  the  penalty  of  the  bond,  the 
parties  intended  the  payment  of  the  penalty  as  much  as  they  now  intend 
the  payment  of  stipulated  damages ;  it  must,  therefore,  we  think,  be 
very  obvious  that  the  actual  intention  of  the  parties,  in  this  class  of 
cases,  and  relating  to  this  point,  is  wholly  immaterial ;  and  though  the 
courts  have  very  generally  professed  to  base  their  decisions  upon  the 
intention  of  the  parties,  that  intention  is  not,  and  can  not,  be  made  the 
real  basis  of  these  decisions.     In  endeavoring  to  reconcile  their  deci- 


Part    3)  LIQUIDATION   OF   DAMAGES. 


83 


sions  with  the  actual  intention  of  the  parties,  the  courts  have  some- 
times been  compelled  to  use  language  wholly  at  war  with  any  idea  of 
interpretation,  and  to  say  "that  the  parties  must  be  considered  as  not 
meaning  exactly  what  they  say."  Horner-  v.  Flintoff,  9  M.  &  W.  678, 
per  Park,  B,  May  it  not  be  said,  with  at  least  equal  propriety,  that  the 
courts  have  sometimes  said  what  they  did  not  exactly  mean  ? 

The  foregoing  remarks  are  all  to  be  confined  to  that  class  of  cases 
where  it  was  clear,  from  the  sum  mentioned  and  the  subject-matter, 
that  the  principle  of  compensation  had  been  disregarded. 

But,  secondly,  there  are  great  numbers  of  cases,  where,  from  the 
nature  of  the  contract  and  the  subject-matter  of  the  stipulation,  for  the 
breach  of  which  the  sum  is  provided,  it  is  apparent  to  the  court  that 
the  actual  damages  for  a  breach  are  uncertain  in  their  nature,  difficult 
to  be  ascertained,  or  impossible  to  be  estimated  with  certainty,  by  ref- 
erence to  any  pecuniary  standard,  and  where  the  parties  themselves  are 
more  intimately  acquainted  with  all  the  peculiar  circumstances,  and 
therefore  better  able  to  compute  the  actual  or  probable  damages,  than 
courts  or  juries,  from  any  evidence  which  can  be  brought  before  them. 
In  all  such  cases,  the  law  permits  the  parties  to  ascertain  for  themselves, 
and  to  provide  in  the  contract  itself,  the  amount  of  the  damages  which 
shall  be  paid  for  the  breach.  In  permitting  this,  the  law  does  not 
lose  sight  of  the  principle  of  compensation,  which  is  the  law  of  the  con- 
tract, but  merely  adopts  the  computation  or  estimate  of  the  damages 
made  by  the  parties,  as  being  the  best  and  most  certain  mode  of  ascer- 
taining the  actual  damage,  or  what  sum  will  amount  to  a  just  compen- 
sation. The  reason,  therefore,  for  allowing  the  parties  to  ascertain 
for  themselves  the  damages  in  this  class  of  cases,  is  the  same  which  de- 
nies the  right  in  the  former  class  of  cases ;  viz.,  the  courts  adopt  the 
best  and  most  practicable  mode  of  ascertaining  the  sum  which  will 
produce  just  compensation. 

In  this  class  of  cases,  where  the  law  permits  the  parties  to  ascertain 
and  fix  the  amount  of  damages  in  the  contract,  the  first  inquiry  ob- 
viously is.  Whether  they  have  done  so  in  fact?  And  here,  the  inten- 
tion of  the  parties  is  the  governing  consideration;  and  in  ascertaining 
this  intention,  no  merely  technical  eflfect  will  be  given  to  the  particular 
words  relating  to  the  sum,  but  the  entire  contract,  the  subject-matter 
and  often  the  situation  of  the  parties  with  respect  to  each  other  and 
to  the  subject-matter,  will  be  considered.  Thus,  though  the  word 
"penalty"  be  used  (Sainter  v.  Ferguson,  7  M.  G.  &  S.  ?16;  Jones  v. 
Green,  3  Y.  &  Jer.  299;  Pierce  v.  Fuller,  8  Mass.  223,  5  Am.  Dec.  102), 
or  "forfeit"  (Nobles  v.  Bates,  7  Cow.  [N.  Y.]  307),  or  "forfeit  and 
pay"  (Fletcher  v.  Dycke,  2  T.  R.  32),  it  will  still  be  held  to  be  stip- 
ulated damages,  if,  from  the  whole  contract,  the  subject-matter,  and 
situation  of  the  parties,  it  can  be  gathered  that  such  was  their  inten- 
tion. And  in  proportion  as  the  difficulty  of  ascertaining  the  actual 
damage  by  proof  is  greater  or  less,  where  this  difficulty  grows  out  of 

GlbB.D4M.— 3 


34  LIQUIDATION   OF   DAMAGES.  (Part    3 

the  nature  of  such  damages,  in  the  like  proportion  is  the  presumption 
more  or  less  strong  that  the  parties  intended  to  fix  the  amount. 

It  remains  only  to  apply  these  principles  to  the  case  before  us.  It 
is  contended  by  the  plaintiff  in  error,  that  the  payment  of  the  one 
thousand  dollars  mentioned  in  the  covenant  of  Jaquith  is  not  made  de- 
pendent solely  upon  the  breach  of  the  stipulation  not  to  go  into  busi- 
ness in  Trenton,  but  that  it  applies  equally — first,  to  the  agreement  to 
sell  to  Hudson  his  interest  in  the  goods ;  second,  to  sell  his  interest  in 
the  books,  notes,  accounts,  etc.;  and,  third,  to  the  agreement  to  dis- 
solve the  partnership.  But  we  can  perceive  no  ground  for  such  a  con- 
struction. The  language  in  reference  to  the  sale  of  the  interest  in 
the  goods,  books,  notes,  accounts,  etc.,  and  that  in  reference  to  the  dis- 
solution, is  not  that  of  a  sale  in  futuro,  nor  for  the  dissolution  of  the 
partnership  at  a  future  period,  but  it  is  that  of  a  present  sale  and  a 
present  dissolution — "does  hereby  sell,"  and  "the  copartnership  is  here- 
by dissolved,"  is  the  language  of  the  instrument.  It  is  plain,  from  this 
language,  from  the  subject-matter,  and  from  all  the  acts  of  the  par- 
ties, that  these  provisions  were  to  take,  and  did  take,  immediate  effect. 
There  could  be  no  possible  occasion  to  provide  any  penalty  or  stipu- 
lated damages  for  the  nonperformance  of  these  stipulations,  because 
this  sale  and  dissolution  would  already  have  been  accomplished  the 
moment  the  contract  took  effect  for  any  purpose;  and,  until  it  took 
effect,  the  stipulation  for  the  one  thousand  dollars  could  not  take  ef- 
fect, or  afford  any  security;  nor  would  Hudson  be  bound  or  need  the 
security.  But  it  remained  to  provide  for  the  future.  If  Jaquith  were 
to  be  at  liberty  to  set  up  a  rival  store  in  the  same  village,  it  might 
seriously  affect  the  success  of  Hudson's  business ;  and  we  are  bound 
to  infer,  from  the  whole  scope  of  this  contract,  that  Hudson  would 
never  have  agreed  to  pay  the  consideration  mentioned  in  it,  nor  to  have 
entered  into  the  contract  at  all,  but  for  the  stipulation  of  Jaquith  "that 
he  will  not  engage  in  the  mercantile  business  in  Trenton,  for  himself 
or  in  connection  with  any  other  one,  for  the  space  of  three  years  from 
this  date,  upon  the  forfeiture  of  the  sum  of  one  thousand  dollars,  to 
be  collected  by  said  Hudson  as  his  damages."  This  stipulation  of  Ja- 
quith not  to  go  into  business,  is  the  only  one  on  his  part  which  looks 
to  the  future ;  and  it  is  to  this,  alone,  that  the  language  in  reference  to 
the  one  thousand  dollars  applies.  Any  other  construction  would  do 
violence  to  the  language,  and  be  at  war  with  the  whole  subject-matter. 

The  damages  to  arise  from  the  breach  of  this  covenant,  from  the 
nature  of  the  case,  must  be  not  only  uncertain  in  their  nature,  but  im- 
possible to  be  exhibited  in  proof,  with  any  reasonable  degree  of  ac- 
curacy, by  any  evidence  which  could  possibly  be  adduced.  It  is  easy 
to  see  that  while  the  damages  might  be  very  heavy,  it  would  be  very 
difficult  clearly  to  prove  any.  Their  nature  and  amount  could  be  better 
estimated  by  the  parties  themselves,  than  by  witnesses,  courts,  or  ju- 
ries. It  is,  then,  precisely  one  of  that  class  of  cases  in  which  it  has  al- 
ways been  recognized  as  peculiarly  appropriate  for  the  parties  to  fix 


Part   3)  TJQTIDATION   OF   DAMAGES.  35 

and  agree  upon  the  damages  for  themselves.  In  such  a  case,  the  lan- 
guage must  be  very  clear  to  the  contrary,  to  overcome  the  inference  of 
intent  (so  to  fix  them),  to  be  drawn  from  the  subject-matter  and  the 
situation  of  the  parties ;  because,  it  is  difficult  to  suppose,  in  such  a 
case,  that  the  party  taking  the  stipulation  intended  it  only  to  cover  the 
amount  of  damages  actually  to  be  proved,  as  he  would  be  entitled  to 
the  latter  without  the  mention  of  any  sum  in  the  contract,  and  he  must 
also  be  supposed  to  know  that  his  actual  damages,  from  the  nature  of 
the  case,  are  not  susceptible  of  legal  proof  to  any  thing  approaching 
their  actual  extent.  That  the  parties  actually  intended,  in  this  case,  to 
fix  the  amount  to  be  recovered,  is  clear  from  the  language  itself,  with- 
out the  aid  of  a  reference  to  the  subject-matter, — "upon  the  forfeiture 
of  the  sum  of  one  thousand  dollars,  to  be  collected  by  the  said  Hud- 
son as  his  damages."  It  is  manifest  from  this  language  that  it  was 
intended  Hudson  should  "collect,"  or,  in  other  words,  receive  this 
amount,  and  that  it  should  be  for  his  damages  for  the  breach  of  the 
stipulation.  This  language  is  stronger  than  "forfeit  and  pay,"  or  "un- 
der the  penalty  of,"  as  these  might  be  supposed  to  have  reference  to 
the  form  of  the  penal  part  of  a  bond,  or  to  the  form  of  action  upon  it, 
and  not  to  the  actual  "collection"  of  the  money. 

It  is,  therefore,  very  clear,  from  every  view  we  have  been  able  to  take 
of  this  case,  that  it  was  competent  and  proper  for  the  parties  to  ascer- 
tain and  fix  for  themselves  the  amount  of  damages  for  the  breach  com- 
plained of,  and  equally  clear  that  they  have  done  so  in  fact.     ♦     *     * 


KEEBLE  V.  KEEBLE. 

(Supreme  Court  of  Alabama,  1S88.     85  Ala.  552,  5  South.  149.) 

Plaintiff  and  defendant's  testator  had  been  in  partnership  in  the  mer- 
cantile business.  Plaintiff  sold  out  to  defendant's  testator,  but  was  em- 
ployed by  the  latter  as  business  manager.  The  terms  of  the  employ- 
ment imposed  on  plaintiff  the  obligation  to  wholly  abstain  from  the 
use  of  intoxicating  liquors,  and,  in  the  event  he  should  become  intoxi- 
cated, that  he  should  pay,  "as  liquidated  damages,"  the  sum  of  $1,000. 
The  plea  alleged  that  plaintiff  violated  his  promise  to  keep  sober,  and 
thereby  became  bound  to  pay  to  defendant's  testator  said  sum  of  $1,- 
000,  which  sum  was  ofl'ered  as  a  set-off  to  plaintiff's  demand. 

SoMERViLLE,  J.®  *  *  *  ^}^^Q  appellant  violated  his  promise  by 
becoming  intoxicated,  and  remained  so  for  a  long  time,  and  acted 
rudely  and  insultingly  towards  the  customers  and  employes  of  the  tes- 
tator, and  otherwise  deported  himself,  by  reason  of  intoxication,  in 
such  manner  as  to  do  injury  to  the  business.  It  is  not  denied  by  ap- 
pellant's counsel  that  this  is  a  total  breach  of  the  promise  to  keep  so- 
ber;  nor  is  it  argued  that  the  damage  resulting  from  the  violation  of 

0  Part  of  tlie  oi)inion  is  omitted. 


36  LIQUIDATION  OF  DAMAGES.  (Part   3 

such  a  promise  can  be  ascertained  with  any  degree  of  certainty;  nor 
even  that  the  amount  agreed  to  be  paid  as  Hquidated  damages,  in  the 
event  of  a  breach,  is  disproportionate  to  the  damages  which  may  have 
been  actually  sustained  in  this  case.  But  the  contention  seems  to  be 
that,  inasmuch  as  it  was  possible  for  a  breach  to  occur  with  no  actual 
damages  other  than  nominal,  the  amount  agreed  to  be  paid  should  be 
construed  to  be  a  penalty.  *  *  *  It  is  argued,  in  other  words, 
that  becoming  intoxicated  in  private,  while  off  duty,  would  be  a  vio- 
lation of  the  contract,  but  would  be  attended  with  no  actual  damage 
to  the  business  of  R.  C.  Keeble  &  Co.  This  fact  would,  in  our  opinion, 
except  the  case  from  the  operation  of  the  rules  above  enunciated. 
There  are  but  few  agreements  of  this  kind  where  the  stipulation  is 
to  do  or  not  do  a  particular  act,  in  which  the  damages  may  not,  ac- 
cording to  circumstances,  vary,  on  a  sliding  scale,  from  nominal  dam- 
ages to  a  considerable  sum.  One  may  sell  out  the  good-will  of  his 
business  in  a  given  locality,  and  agree  to  abstain  from  its  further  pros- 
ecution, or,  in  the  event  of  his  breach  of  his  agreement,  to  pay  a  cer- 
tain sum  as  liquidated  damages ;  as,  for  example,  not  to  practice  one's 
profession  as  a  physician  or  lawyer,  not  to  run  a  steam-boat  on  a  cer- 
tain river  or  to  carry  on  the  hotel  business  in  a  particular  town,  not 
to  re-establish  a  newspaper  for  a  given  period,  or  to  carry  on  a  par- 
ticular branch  of  business  within  a  certain  distance  from  a  named  city. 
In  all  such  cases,  as  often  decided,  it  is  competent  for  the  parties  to 
stipulate  for  the  payment  of  a  gross  sum  by  way  of  liquidated  dam- 
ages for  the  violation  of  the  agreement,  and  for  the  very  reason  that 
such  damages  are  uncertain,  fluctuating,  and  incapable  of  easy  as- 
certainment. *  *  *  It  is  clear  that  each  of  these  various  agree- 
ments may  be  violated  by  a  substantial  breach,  and  yet  no  damages 
might  accrue  except  such  as  are  nominal.  The  obligor  may  practice 
medicine,  and  possibly  never  interfere  with  the  practice  of  the  other 
contracting  party ;  or  law,  without  having  a  paying  client ;  or  he  may 
run  a  steam-boat  without  a  passenger;  or  an  hotel  without  a  guest; 
or  carry  on  a  newspaper  without  the  least  injury  to  any  competitor. 
But  the  law  will  not  enter  upon  an  investigation  as  to  the  quantum  of 
damages  in  such  cases.  This  is  the  very  matter  settled  by  the  agree- 
ment of  the  parties.  If  the  act  agreed  not  to  be  done  is  one  from 
which,  in  the  ordinary  course  of  events,  damages,  incapable  of  ascer- 
tainment save  by  conjecture,  are  liable  naturally  to  follow,  sometimes 
more  and  sometimes  less,  according  to  the  aggravation  of  the  act,  the 
court  will  not  stop  to  investigate  the  extent  of  the  grievance  com- 
plained of  as  a  total  breach,  but  will  accept  the  sum  agreed  on  as  a 
proper  and  just  measurement,  by  way  of  liquidated  damages,  unless 
the  real  intention  of  the  parties,  under  the  rules  above  announced,  de- 
signed it  as  a  penalty.  We  may  add,  moreover,  that  no  one  can  ac- 
curately estimate  the  physiological  relation  between  private  and  pub- 
lic drunkenness,  nor  the  causal  connection  between  intoxication  one 
time  and  a  score  of  times.     The  latter,  in  each  instance,  may  follow 


Part   3)  LIQUIDATION   OF  DAMAGES.  37 

from  the  former,  and  the  one  may  naturally  lead  to  the  other.  There 
would  seem  to  be  nothing  harsh  or  unreasonable  in  stipulating  against 
the  very  source  and  beginning  of  the  more  aggravated  evil  sought  to 
be  avoided.     *     *     * 


MONMOUTH  PARK  ASS'N  v.  WALLIS  IRON  WORKS. 

(Court  of  Errors  and  Appeals  of  New  Jersey,  18U3.     55  N.  J.  Law,  132,  26 
Atl.  140,  19  L.  R.  A.  450,  39  Am.  St.  Rep.  (J20.) 

The  plaintiff  brought  an  action  in  the  supreme  court  against  the  de- 
fendant to  recover  $6,384.66,  and  interest,  as  a  final  balance  for  work 
done,  chiefly,  under  a  sealed  contract  between  them,  providing  for  the 
construction  of  a  grand  stand  at  the  Monmouth  Park  race  course. 
The  articles  of  agreement  contained  the  following  provisions: 

"In  case  the  said  party  of  the  first  part  shall  fail  to  fully  and  en- 
tirely, and  in  conformity  to  the  provisions  and  conditions  of  this  agree- 
ment, perform  and  complete  the  said  work,  and  each  and  every  part 
and  appurtenance  thereto,  within  the  time  hereinbefore  limited  for 
such  performance  and  completion,  or  within  such  further  time  as,  in 
accordance  with  the  provisions  of  this  agreement,  shall  be  fixed  or  al- 
lowed for  such  performance  and  completion,  the  said  party  of  the 
first  part  shall  and  will  pay  to  the  said  party  of  the  second  part  the 
sum  of  one  hundred  dollars  for  each  and  every  day  that  they,  the  said 
party  of  the  first  part,  shall  be  in  default,  which  said  sum  of  one  hun- 
dred dollars  per  day  is  hereby  agreed  upon,  fixed,  and  determined  by 
the  parties  hereto  as  the  damages  which  the  party  of  the  second  part 
will  suffer  by  reason  of  such  default,  and  not  by  way  of  penalty."  ^ 

Dixon,  J.^  The  first  exception  to  be  considered  took  its  rise  from 
the  fact  that  the  structure  was  not  completed  within  the  time  limited 
by  the  contract,  nor  until  94  days  after  the  expiration  of  a  month's 
extension  of  that  time.  The  defendant  claimed  a  deduction  or  set 
off  of  $100  for  each  day's  delay.  *  *  *  The  plaintiff  urged  that 
the  $100  a  day  was  a  penalty;  and  so  the  trial  judge  ruled,  requiring 
that  the  defendant  should  prove  the  actual  damages,  and  be  allowed 
only  for  what  was  proved.  To  this  ruling  the  defendant  excepted. 
In  determining  whether  a  sum  which  contracting  parties  have  declar- 
ed payable  on  default  in  performance  of  their  contract  is  to  be  deemed 
a  penalty,  or  liquidated  damages,  the  general  rule  is  that  the  agree- 
ment of  the  parties  will  be  effectuated.  Their  agreement  will,  how- 
ever, be  ascertained  by  considering,  not  only  particular  words  in  their 
contract,  but  the  whole  scope  of  their  bargain,  including  the  subject 
to  which  it  relates.  If.  on  such  consideration,  it  appears  that  they  have 
provided  for  larger  damages  than  the  law  permits,  e.  g.  more  than^  the 
legal  rate  for  the  nonpayment  of  money,  or  that  they  have  provided 

1  The  statement  of  facts  in  the  report  of  this  case  is  here  abridged. 
8  Part  of  the  opinion  is  omitted. 


38  LIQUIDATION  OF  DAMAGES.  (Part   3 

for  the  same  damages  on  the  breach  of  any  one  of  several  stipulations, 
when  the  loss  resulting  from  such  breaches  clearly  must  differ  in 
amount,  or  that  they  have  named  an  excessive  sum  in  a  case  where 
the  real  damages  are  certain,  or  readily  reducible  to  certainty  by  proof 
before  a  jury,  or  a  sum  which  it  would  be  unconscionable  to  award, 
under  any  of  these  conditions  the  sum  designated  is  deemed  a  penalty. 
And  if  it  be  doubtful,  on  the  whole  agreement,  whether  the  sum  is 
intended  as  a  penalty  or  as  liquidated  damages,  it  will  be  construed  as 
a  penalty,  because  the  law  favors  mere  indemnity.  But  when  dam- 
ages are  to  be  sustained  by  the  breach  of  a  single  stipulation,  and  they 
are  uncertain  in  amount,  and  not  readily  susceptible  of  proof  under 
the  rules  of  evidence,  then,  if  the  parties  have  agreed  upon  a  sum  as 
the  measure  of  compensation  for  the  breach,  and  that  sum  is  not  dis- 
proportionate to  the  presumable  loss,  it  may  be  recovered  as  liquidated 
damages.  These  are  the  general  principles  laid  down  in  the  text-books, 
and  recognized  in  the  judicial  reports  of  this  state,  Cheddick's  Ex'r 
v.  Marsh,  21  N.  J.  Law,  4G3 ;  Whitfield  v.  Levy,  35  N.  J.  Law,  149 ; 
Hoagland  v.  Segur,  38  N.  J.  Law,  230;  Lansing  v.  Dodd,  45  N.  J. 
Law,  525.  In  the  present  case  the  default  consists  of  the  breach  of  a 
single  covenant,  to  complete  the  grand  stand  as  described  in  the  ap- 
proved plans  and  specifications  within  the  time  limited.  It  is  plain  that 
the  loss  to  result  from  such  a  breach  is  not  easily  ascertainable.  The 
magnitude  and  importance  of  the  grand  stand  may  be  inferred  from  its 
cost — $133,000.  It  formed  a  necessary  part  of  a  very  expensive  en- 
terprise. The  structure  was  not  one  that  could  be  said  to  have  a  de- 
finable rental  value.  Its  worth  depended  upon  the  success  of  the  en- 
tire venture.  How  far  the  noncompletion  of  this  edifice  might  afifect 
that  success,  and  what  the  profits  or  losses  of  the  scheme  would  be, 
were  topics  for  conjecture  only.  The  conditions,  therefore,  seem  to 
have  been  such  as  to  justify  the  parties  in  settling  for  themselves  the 
measure  of  compensation.  The  stipulations  of  parties  for  specified 
damages  on  the  breach  of  a  contract  to  build  within  a  limited  time 
have  frequently  been  enforced  by  the  courts.  In  Fletcher  v.  Dyche, 
2  Term  R.  32,  £10  per  week  for  delay  in  finishing  the  parish  church ; 
in  Duckworth  v.  Alison,  1  Mees.  &  W.  412,  £5  per  week  for  delay 
in  completing  repairs  of  a  warehouse;  in  Legge  v.  Harlock,  12  Q.  B. 
1015,  £1  per  day  for  delay  in  erecting  a  barn,  wagon  shed,  and  gran- 
ary; in  Law  V.  Local  Board  (1892)  1  Q.  B.  127,  ilOO  and  £5  per  week 
for  delay  in  constructing  sewerage  works ;  in  Ward  v.  Building  Co., 
125  N.  Y.  230,  26  N.  E.  256,  $10  a  day  for  delay  in  erecting  dwelling 
houses;  and  in  Malone  v.  City  of  Philadelphia,  147  Pa.  416,  23  Atl. 
628,  $50  a  day  for  delay  in  completing  a  municipal  bridge, — were  all 
deemed  liquidated  damages.  Counsel  has  referred  us  to  two  cases 
of  building  contracts,  where  a  dififerent  conclusion  was  reached :  Mul- 
doon  V.  Lynch,  66  Cal.  536,  6  Pac.  417,  and  Clements  v.  Railroad  Co., 
132  Pa.  445,  19  Atl.  274,  276.  In  the  former  case  a  statutory 
rule  prevailed,  and  in  the  latter  the  real  damage  was  easily  ascer- 


Part   3)  LIQUIDATION   OF   DAMAGES.  ^^ 

tainable,  and   the  stipulated   sum  was  unconscionable.     In   the  case 
at  bar  we  have  no  data  for  saying  that  $100  a  day  was  unconscion- 
able.    The  sole   question   remaining  on   this   exception,  therefore,   is 
whether   the   parties    have    agreed   upon    the    sum   named    as    liqui- 
dated  damages.     Their   language   seems,   indisputably,   to  have   this 
meaning.     They  expressly  declare  the  sum  to  be  agreed  upon  as  the 
damages  which  the  defendant  will  suffer,  they  expressly  deny  that 
they  mean  it  as  a  penalty,  and  they  provide  for  its  deduction  and  re- 
tention by  the  defendant  in  a  mode  which  could  be  applied  only  if  the 
sum  be  considered  liquidated  damages.     But  it  is  argued  that  as  the 
contract  authorized  the  engineer  of  the  defendant  to  make  any  altera- 
tions or  additioi.     that  he  might  find  necessary  during  the  progress 
of  the  structure,  and  required  the  plaintiff  to  accede  thereto,  it  is  un- 
reasonable to  suppose  that  the  plaintiff  could  have  intended  to  bind 
itself,  in  liquidated  damages,  for  delay  in  completing  such  a  change- 
able contract.    But  this  argument  seems  to  be  aside  from  the  present 
inquiry,  which   is,  not  whether  the   plaintiff  became  responsible    for 
damages  by  reason  of  the  noncompletion  of  the  grand  stand  on  the 
day  named,  but  whether,  if  it  did  become  so  responsible,  those  dam- 
ages  are   liquidated   by   the   contract.     On   the   question   first   stated, 
changes  ordered  by  the  engineer  may  afford  matter  for  consideration ; 
on  the  second  question,  they  are  irrelevant.     Certainly  the  bills  of  ex- 
ceptions do  not  indicate  any  alterations  or  additions  which,  as  matter 
of  law,  would  relieve  the  plaintiff  from  responsibility  for  the  admit- 
ted delay,  and  consequently  there  may  have  been  ground  for  consider- 
ing the  defendant's  damages.     If  there  was,  the  amount  of  the  dam- 
ages was  adjusted  by  the  contract  at  $100  per  day.    We  think  the  rul- 
ing at  the  circuit  on  this  point  was  erroneous.     *     *     *  » 


WILLSON  V.  MAYOR,  etc.,  OF  BALTIMORE. 

(Court  of  Appeals  of  Maryland.  1896.     sa  Md.  203,  34  Atl.  774,  55  Am. 

St.  Rep.  339.) 

McSherry,  C.  J.^°  The  mayor  and  city  'council  of  Baltimore, 
through  the  commissioners  of  public  schools,  advertised  for  sealed 
proposals  for  furnishing  the  schools  of  the  city  with  desks  and  other 
necessary  appliances.  The  bids  were  required  to  be  made  out  upon 
forms  which  contained  various  stipulations.    Among  these,  it  was  pro- 

9  See  other  important  cases  in  Tennessee  Mamifacturina:  Co.  v.  .lames  91 
Tenn  154,  IS  S  W.  2G2,  15  L.  R.  A.  211,  30  Am.  St.  Rep.  SG5  (1892) ;  Condon 
V.  Kemper.  47  Kan.  12(i.  27  Pac.  S29,  13  L.  R.  A.  (i7l  (1891);  Kf  l^,^'- .J-^'^^'l^y- 
HS  Pa.  645,  24  Atl.  170.  33  Am.  St.  Rep.  846  (1892);  Emery  v.  Boyle.  JtO  la. 
049  49  \tl  779  (1901)  ;  Tode  v.  Gross.  127  N.  Y.  480.  28  N.  E.  469,  13  L.  R.  A. 
fi-,-^'  '>4  Am  St  Rep.  475  (1891);  Daldn  v.  Williams,  17  Wend.  (N.  \.)  44* 
0^75";  WlTliams  ^^  Daldn,  22  Wend.  (N.  Y.)  201  (1839) ;  Streeper  v.  WUHams. 
48  Pa.  450  (1865);  Bagley  v.  Peddie,  16  N.  Y.  469,  69  Am.  Dec.  <13  O-bol). 

10  Part  of  the  opinion  is  omitted. 


40  LIQUIDATION  OF  DAMAGES.  (Part   3 

vided  that  "the  full  name  and  address  of  a  surety  must  be  written  on 
the  proposal,  and  each  proposal  must  be  accompanied  by  a  certified 
check  for  five  hundred  dollars,  *  *  *  said  check  to  be  payable 
to  the  mayor  and  city  council  of  Baltimore.  If  the  successful  bidders 
enter  into  contract,  with  bond,  without  delay,  their  checks  will  be  re- 
turned, as  will  those  of  the  unsuccessful  bidders.  No  proposal  will  be 
entertained  which  does  not  comply  with  the  terms  hereof."  The  appel- 
lant filled  out  one  of  these  forms,  specified  the  prices  at  which  he  would 
furnish  the  needed  supplies,  gave  the  name  and  address  of  his  surety, 
and  inclosed  his  certified  check  for  $500,  payable  to  the  appellee. 
His  bid  being  the  lowest,  he  was  awarded  the  contract ;  but,  through  no 
fault  of  his  own,  and  though  he  acted  in  entire  good  faith,  he  was 
unable,  in  spite  of  his  efforts,  to  furnish  the  signature  of  the  surety 
he  had  named  in  his  bid,  and  he  failed,  without  being  at  all  to  blame, 
to  secure  any  other  surety  on  his  bond.  Thereupon  the  commission- 
ers readvertised  for  bids,  these  being  obtained  and  accepted.  The  new 
bids  were  for  sums  much  less  than  those  named  by  the  appellant  in 
his  bid,  and  in  consequence  the  city  not  only  lost  no  money  by  the 
failure  of  the  appellant  to  furnish  a  bond  and  to  fulfill  his  contract, 
but  in  fact  saved  a  considerable  amount.  The  appellant  then  demanded 
the  return  of  the  $500  which  he  had  deposited  with  his  bid,  but  the 
city  refused  to  surrender  the  money,  and  claimed  the  right  to  hold 

i+l  ^         ^         3(c 

On  the  part  of  the  appellant  it  is  insisted  that  the  $500  deposit  was 
designed  to  be,  and  in  reality  was,  a  penalty,  while  on  the  part  of  the 
city  it  is  claimed  that  the  sum  named  was  intended  to  be,  and  in  fact 
was,  liquidated  or  stipulated  damages,  which,  for  any  breach  of  the 
appellant's  bid  or  proposal,  was  to  be  retained  by  the  city,  without 
reference  to  whether  the  city  had  actually  sustained  any  injury  or  not. 
The  distinction  between  a  penalty  and  liquidated  damages  is  of  the  ut- 
most importance,  and  upon  the  decision  in  any  given  case  between 
them  depends  the  question  whether  a  sum  stipulated  to  be  paid  upon 
a  breach  of  the  contract  shall  be  treated  as  a  debt,  to  be  arbitrarily  en- 
forced, without  regard  to  the  actual  loss,  or  whether,  on  the  other 
hand,  it  shall  be  discarded,  to  let  in  an  inquiry  as  to  the  extent  of  the 
damage  really  sustained  in  consequence  of  an  omission  or  refusal  to 
perform  the  agreement.  If  the  sum  designated  is  held  to  be  liquidat- 
ed damages,  the  only  evidence  necessary  to  warrant  a  recovery  of  that 
particular  amount  is  that  the  contract  to  which  it  relates  has  been  brok- 
en. But,  if  the  sum  is  regarded  as  a  mere  penal  sum,  its  place  in  the 
contract  gives  it  no  weight,  and  a  recovery  for  a  breach  of  the  under- 
taking will  be  limited  to  the  extent  of  the  loss  or  injury  actually  sus- 
tained and  proved.  In  the  one  instance,  therefore,  the  whole  of  the 
sum  is  recoverable,  when  there  has  been  a  default,  though  the  actual 
damages  be  nominal,  while  in  the  other  only  such  damages  as  have 
been  really  incurred,  and  are  satisfactorily  shown,  can  be  assessed  and 
awarded  for  a  breach.     It  is  obvious,  then,  that  the  pending  contro- 


Part   3)  LIQUIDATION   OF  DAMAGES.  41 

versy  turns  upon  the  question  whether  the  $500  deposit  is  liquidated     » 
damages,  or  a  penalty.     If  it  be  the  former  the  plaintiff  has  no  right 
to  recover  it  back,  but  if  it  be  the  latter  the  city  cannot  lawfully  re- 
tain it,  except  to  the  extent  that  actual  damage  has  been  sustained. 

*  *     * 

A  sum,  if  it  be  at  all  reasonable,  and  is  stipulated  to  be  paid  as  liq- 
uidated damages  for  the  breach  of  a  contract,  will  be  regarded  as  such, 
and  not  as  a  penalty,  where,  from  the  nature  of  the  covenant,  the 
damages  arising  from  its  breach  are  wholly  uncertain,  and  cannot 
be  ascertained  upon  an  issue  of  fact.  A  common  instance  is  the  case 
of  agreements  between  professional  men,  binding  a  retiring  partner, 
or  an  apprentice  or  clerk,  not  to  interfere  with  the  business  of  the 
other.  *  *  *  But  a  stipulation  to  pay  a  specified  sum  upon  the 
nonperformance  of  a  contract  is  regarded  as  a  penalty,  rather  than  as 
liquidated  damages,  if  the  intention  of  the  parties  as  to  its  effect  is  at 
all  doubtful,  or  is  of  equivocal  interpretation.  *  *  *  And  such 
a  stipulation  is  generally  regarded  as  a  penalty,  in  the  absence  of  a 
clear  indication  of  a  contrary  intention  by  the  parties  at  the  time  the 
contract  was  executed,  where  the  agreement  is  certain,  and  the  dam- 
ages   for    a    breach    thereof    are    easily    and    exactly    ascertainable. 

*  *  *  Finally,  the  tendency  of  late  years  has  been  to  regard  the 
statements  of  the  parties  as  to  liquidated  damages  in  the  light  of  a 
penalty,  unless  the  contrary  intention  is  unequivocally  expressed,  so 
that  harsh  provisions  will  be  avoided,  and  compensation  alone  will  be 
awarded. 

Now,  it  will  be  observed  that  the  contract  between  the  appellant  and 
the  appellee,  evidenced  by  the  bid  filed  and  accepted,  has  not  a  word 
in  it  descriptive  of  the  $500  deposit  as  either  liquidated  damages  or 
a  penalty.  It  is  clear,  therefore,  that  the  parties  themselves  have  not, 
by  any  term  or  provision  of  the  agreement,  declared  that  the  deposit 
shall  be  either  the  one  or  the  other,  but  have  left  the  question  at  large ; 
and  it  is  equally  clear  that  there  is  nothing  in  the  subject-matter  of 
the  agreement  which  imperatively  requires  that  the  deposit  be  char- 
acterized as  liquidated  damages,  especially  as  the  decided  inclination 
of  the  courts,  in  doubtful  cases  even,  is  to  treat  the  stipulated  sum  as 
merely  a  penalty.  Indeed,  there  is  no  explicit  forfeiture  of  the  deposit 
at  all.  The  contract  provides  simply  that  "if  the  successful  bidders  en- 
ter into  contract,  with  bond,  without  delay,  their  checks  will  be  re- 
turned"; but  it  is  nowhere  expressly  declared  that  a  failure  to  enter 
into  bond  shall  entitle  the  city  to  the  whole  amount  of  the  deposit, 
or  to  any  part  of  it,  though  it  is  palpably  implied  that  so  much  of  it 
as  will  be  a  just  compensation  for  any  loss  that  may  result  to  the  city 
from  the  failure  of  the  bidder  to  furnish  the  bond  was,  in  view  of  the 
whole  subject-matter,  designed  by  the  parties  to  be  applied  by  the 
city  to  its  own  reimbursement.  But,  beyond  this,  the  exact  amount 
of  loss  which  would  result  to  the  city  by  the  failure  of  a  bidder  to 
give  the  required  bond  is  capable  of  definite  and  precise  ascertainment. 


42  LIQUIDATION  OF  DAMAGES.  (Part   3 

A  failure  to  give  the  bond  is  a  breach  of  the  contract,  and  the  damages 
which  would  result  from  that  breach  would  be  the  amount  the  city 
paid,  if  anything,  in  excess  of  the  amount  of  the  unexecuted  bid,  and 
also  the  expenses  of  a  readvertising  for  new  bids.  These  elements  of 
damage  are  neither  uncertain,  nor  difficult  of  ascertainment  by  a  jury, 
and  this  fact  is  one  of  the  recognized  tests  resorted  to  for  distinguish- 
ing between  liquidated  damages  and  a  penalty.  Geiger  v.  Railroad  Co., 
41  Md.  4.  Not  only,  then,  is  there  no  provision  expressly  declaring 
this  deposit  to  be  liquidated  damages,  but  to  treat  it  as  such  would  re- 
quire the  superaddition,  by  implication,  of  a  distinct  term  to  the  con- 
tract, which  is  not  permissible,  and  the  reversal  of  the  doctrine  that 
courts  lean  strongly  against  upholding  a  specified  sum  as  liquidated 
damages  where  such  an  interpretation  is  of  doubtful  accuracy  and 
leads  to  manifest  injustice.  That  an  interpretation  which  treats  this 
deposit  as  liquidated  damages  would,  to  say  the  least,  be  of  doubtful 
accuracy,  cannot  be  disputed.  That  it  would  be  unjust,  in  this  par- 
ticular case,  in  its  results,  is  scarcely  open  to  discussion.  The  ap- 
pellant is  conceded  to  have  acted  in  perfect  good  faith.  The  city  has 
not  only  not  lost  anything  by  his  failure  to  give  the  bond,  but  it  has 
actually  gained  thereby  a  considerable  sum ;  and  it  would  be  uncon- 
scionable (Cutler  V.  How,  8  Mass.  257)  under  these  conditions,  for 
it  to  retain  the  $500  as  stipulated  and  liquidated  damages  for  a  techni- 
cal breach  which  has  occasioned  no  appreciable  injury.  We  discover 
nothing  on  the  face  of  the  contract,  nothing  in  all  the  surrounding  cir- 
cumstances on  the  subject-matter,  and  nothing  in  the  rules  of  law, 
which  will  justify  us  in  holding  this  deposit  to  be  liquidated  damages, 
unless  the  remaining  proposition  to  be  considered  sustains  the  appel- 
lee's contention.  That  proposition  is  that  where  a  sum  is  deposited, 
either  with  a  third  person,  or  with  the  other  party  to  the  contract,  it 
is  invariably  treated  as  liquidated  damages ;  and  the  cases  of  Wallis 
V.  Smith,  21  Ch.  Div.  250,  Hinton  v.  Sparkes,  L.  R.  3  C.  P.  161,  and 
some  others,  have  been  referred  to.  *  *  *  These  cases,  and  oth- 
ers to  which  allusion  might  be  made,  relate  to  a  different  class  of 
contracts.  Where  parties  contract,  as  they  frequently  do  by  a  condition 
of  sale,  that  the  deposit  money  shall  be  forfeited  if  the  purchaser  fail 
to  carry  out  his  contract,  the  deposit  cannot,  nor  can  any  part  of  it, 
be  recovered  back  on  the  ground  that  the  forfeiture  was  in  the  nature 
of  a  penalty,  and  the  actual  loss  to  the  vendor  was  less  than  the  amount 
of  the  deposit.  In  fact,  the  cases  distinguishing  between  a  penalty 
and  liquidated  damages  do  not  apply  to  a  pecuniary  deposit,  which  is 
in  reality  not  a  pledge,  but  a  payment  in  part  of  the  purchase  money. 
Wood,  Mayne,  Dam.  §  245;    Sugd.  Vend.  c.  1,  §§  3,  18.     *     *     * 

It  is  stated  with  great  clearness  and  accuracy  by  Mr.  Brantly,  in  his 
admirable  work  on  the  Law  of  Contract  (page  193),  that,  "when  it  is 
provided  that  the  sum  deposited  in  part  performance  of  the  contract 
is  to  be  forfeited  upon  failure  of  the  party  to  complete  it,  such  sum, 
if  not  excessive,  is  liquidated  damages."     Conversely,  if  the  deposit 


Part    3)  LIQUIDATION   OF   DAMAGES.  43 

be  not  made  in  parr  performance  of  the  contract,  but  be  collateral  to 
the  contract,  and  a  mere  guaranty  that  its  provisions  will  be  observed, 
and  if  the  making  of  the  deposit  is  not  a  part  of  the  thing  to  be  done 
under  or  in  execution  of  the  contract,  but  is  required  simply  and  sole- 
ly as  a  condition  precedent  to  entering  into  the  contract,  which  dis- 
tinctly relates  to  something  else,  then,  obviously,  such  a  deposit  would 
not  be  treated  as  liquidated  damages  merely  because  it  is  a  deposit, 
but  would  be  either  liquidated  damages,  or  a  penalty,  as  the  rules  ap- 
plicable to  such  a  question  might  cause  the  court  to  determine. 

We  are  not  prepared  to  expand  the  doctrine  relating  to  deposits 
made  on  the  purchase  of  land  by  applying  it  to  contracts  of  the  char- 
acter now  before  us.  The  deposit  in  the  case  at  bar,  when  made,  was 
not  part  of  a  sum  ultimately  payable,  under  the  contract,  to  the  city 
by  the  appellant,  nor  was  it  set  apart,  either  in  express  terms  or  im- 
pliedly, to  meet  an  obligation  arising  out  of  a  purchase;  but  it  was  de- 
signed to  serve  precisely  the  same  purpose  that  a  guaranty  or  other 
indemnity  would  have  done, — to  save  the  city  harmless  from  any  ac- 
tual loss  which  might  arise  or  grow  out  of  a  failure  on  the  part  of  a 
bidder  to  furnish  a  bond  conditioned  for  the  performance  of  his  ac- 
cepted proposal.  It  would  introduce  a  sweeping  departure  from  estab- 
lished principles  to  hold,  as  an  unbending  rule  applicable  alike  to  all 
contracts,  no  matter  what  their  nature  or  subject,  that  a  deposit  made 
to  secure  their  due  performance  must  invariably  be  treated  as  liquidat- 
ed damages,  and  never  as  a  penalty.  Such  a  rule  would,  in  its  appli- 
cation, ignore  or  arbitrarily  override  all  other  principles  of  interpre- 
tation, and  would  force  courts  to  regard  as  liquidated  damages  sums 
which  obviously  would  not,  according  to  the  canons  of  construction 
to  which  we  have  alluded,  ordinarily  be  so  considered,     *     *     * 

Finally  it  was  insisted  that  when  an  agreement  is  in  the  alternative 
— to  do  some  particular  thing  or  to  pay  a  given  sum  of  money — the 
court  will  hold  the  party  failing  to  have  had  his  election,  and  compel 
him  to  pay  the  money.  Railroad  Co.  v.  Reichert,  58  Md.  278,  and 
Sedg.  Dam.  §  423,  were  relied  on  to  support  this  doctrine.  The  case 
in  58  Md.  certainly  does  lay  down  the  rule  contended  for,  but  the 
state  of  facts  to  which  the  rule  was  there  applied  is  totally  different 
from  the  facts  of  this  case.  There  Reichert  owned  a  coal  yard,  and  a 
trestle  connecting  it  with  a  railroad.  Another  railroad  company,  need- 
ing part  of  his  land  for  the  construction  of  its  road,  condemned  it. 
The  construction  of  its  road  required  that  'the  trestle  should  be  re- 
moved. The  jury  of  condemnation  awarded  $600  damages,  and  fur- 
ther awarded  that  the  condemning  road  should  erect  for  Reichert  an- 
other trestle,  and  then  provided  in  the  inquisition  that  upon  its  failure 
to  comply  it  should  pay  the  further  sum  of  $1,500.  This  inquisition 
was  accepted  by  both  parties,  and  was  ratified  by  their  consent.  The 
railroad  company  then  neglected  to  build  the  trestle,  and  Reichert 
brought  suit.  This  court  held  that  the  award  of  $1,500  was  not  a 
penalty;    that  the  jury  of  inquisition  had  fixed  the  sum  to  be  paid  if 


44  LIQUIDATION  OF  DAMAGES.  (Part   3 

the  company  failed  to  construct  the  trestle;  and  that  the  alternative 
thus  given  and  accepted  by  the  agreement  of  the  parties  bound  the 
company  to  perform  the  conditions  upon  which  it  took  Reichert's  prop- 
erty, or  to  pay  the  sum  which  the  jury  fixed,  and  the  parties  agreed 
to,  in  lieu  of  a  compliance  with  the  inquisition.  There  is  in  the  pend- 
ing case  no  alternative  agreement  at  all, — certainly  no  express  or  un- 
equivocal one;  and,  before  the  doctrine  sanctioned  in  58  Md.  can  be 
applied,  there  must,  by  sheer  construction,  be  imported  into  the  pro- 
posal or  bid  which  the  appellant  made  a  term  that  is  not  there  now, — 
a  stipulation  either  to  sign  the  bond  with  a  surety,  or  to  pay  $500. 
For  the  purpose  of  declaring  the  deposit  to  be  liquidated  damages, 
the  contract  actually  made  w^ould  have  to  be  changed  into  a  totally 
different  agreement.     This,  of  course,  cannot  be  done.    *    *    * 

FRASER  et  al.  v.  LITTLE  et  al. 
(Supreme  Court  of  Michigan,  1SG5.    13  Mich.  195,  87  Am.  Dec.  741.) 

Martin,  C.  J.  This  action  is  for  the  recovery  of  the  penalty  of  a 
bond  executed  by  Fraser  and  Raymond  in  the  penalty  of  $800,  con- 
ditioned that  one  Robertson  should  prosecute  to  effect  an  action  of  re- 
plevin then  commenced  by  him  against  the  defendants  in  error.  Lit- 
tle, Hess,  and  Boutell.  It  appears  that  Robertson  was  defeated  in  his 
action,  and  judgment  rendered  against  him  for  the  value  of  the  prop- 
erty replevied  by  him,  viz.  for  $1,753.73.  I  do  not  learn  from  the 
bill  of  exceptions  that  any  execution  was  issued  upon  such  judgment, 
and  returned  as  unsatisfied  wholly  or  in  part,  nor  that  any  effort  was 
made  to  collect  from  Robertson  the  amount  of  such  verdict.  In  this 
action,  ihe  court  rendered  judgment  against  Fraser  and  Raymond  for 
the  penal  sum  of  the  bond,  with  interest  (called  damages  for  the  de- 
tention of  the  sum  of  $800)  from  the  rendition  of  the  judgment  in  the 
action  of  replevin,  amounting  in  all  to  the  sum  of  $1,010.31.  The 
error  assigned  is  that  the  court  rendered  judgment  for  an  amount  ex- 
ceeding the  penal  sum  mentioned  in  the  bond.  I  think  this  error  is 
well  assigned.  The  obligation  of  the  plaintiffs  in  error  arose  upon  no 
consideration  received  by  them,  or  benefit  which  could  accrue  'to  them. 
It  was  purely  voluntary,  to  satisfy  the  statute,  and  enable  Robertson 
to  prosecute  his  action  of  replevin.  The  statute  requires  such  bond 
to  be  in  a  sum  at  least  double  the  appraised  value  of  the  property  re- 
plevied. This  statute,  I  think,  fixes  the  limit  of  the  sureties'  liability, 
so  that  in  executing  a  bond  as  surety  we  must  understand  that  he  in- 
tends and  only  undertakes  to  become  liable  to  the  extent  of  the  penal 
sum  mentioned,  and  no  further,  and  that  the  statute  requires  noth- 
ing more  from  him.  Although  there  are  conflicting  authorities  upon 
this  question,  yet  it  seems  to  me  that  upon  no  principle  of  equity  or 
justice  can  a  surety  upon  such  a  bond,  given  under  such  circumstances 


Part   3)  LIQUIDATION   OF  DAMAGES.  45 

and  statutory  requirements  as  the  bond  in  this  case  was  executed, 
and  without  any  consideration  received  for  it,  or  resulting  benefit  to 
spring  from  it,  be  held  beyond  the  sum  "nominated,"  and  cast  in 
damages,  for  no  default  of  his  own.  The  remedy  of  Little  and  others 
for  any  excess  of  damages  over  the  $800  is  exclusively  against  the 
plaintiff  in  the  action  against  them.  Fraser  and  Raymond  risked 
$800,  and  no  more,  and  there  could  be  no  default  upon  their  part  by 
reason  of  the  failure  of  the  plaintiff  in  the  replevin  suit,  or  otherwise, 
which  could  increase  the  penal  sum  of  the  bond,  or  impose  upon  them 
a  greater  liability  than  the  one  assumed.  The  statute,  as  above  re- 
marked, having  required  the  bond  to  be  at  least  in  double  the  appraised 
value  of  the  property  replevied,  they  had  a  right  to  suppose,  and  it 
would  be  a  reasonable  and  natural  presumption,  that  the  penal  sum 
fixed  in  'the  bond  would  and  should  cover  all  exigencies  so  far  as  af- 
fected their  liability. 

I  think  the  judgment  should  have  been  for  the  sum  of  $800  only,  and 
that  the  judgment  of  the  circuit  court  should  be  reversed,  and  a  new 
trial  ordered. 

Campbell,  J.^^  The  only  question  in  this  case  is  whether  judg- 
ment can  be  given  on  a  replevin  bond  for  more  than  the  penalty  and 
costs.  The  action  was  an  action  of  debt  on  a  bond  in  the  penalty  of 
$800,  and  judgment  was  rendered  for  an  additional  sum  of  $210.31 
by  way  of  damages  for  its  detention,  in  addition  to  costs  of  suit. 

I  think  there  is  no  foundation  for  any  such  judgment.  Where  a 
bond  or  specialty  is  given  in  the  amount  actually  due,  and  not  in  a 
penalty,  there  is  no  reason  and  no  rule  which  will  prevent  a  recovery 
of  interest  on  the  actual  debt,  for  which  the  bond  is  only  an  evidence 
under  seal.  But  where  an  undertaking  or  condition  is  secured  by  a 
penal  bond,  which  is  not  supposed  to  represent  the  actual  debt  by  its 
penalty,  such  penalty  never  became  the  actual  debt,  except  by  way  of 
forfeiture,  and  upon  such  a  forfeiture  interest  was  never  allowed  to 
run  by  the  common  law  or  by  statute.  And  the  cases  cited  on  the 
argument  from  Massachusetts  and  Kentucky,  which  assume  that  in- 
terest runs  merely  from  'the  fact  that  the  penalty  became  the  debt 
upon  forfeiture,  are  entirely  unsupported,  and  would  probably  never 
have  been  made  had  not  the  actual  debt  in  these  cases  equaled  or  ex- 
ceeded the  penal  sum.  As  authorities,  they  are  based  upon  a  false  as- 
sumption, and  cannot  be  maintained  on  any  such  principle.  In  Eng- 
land, the  rule  of  liability  upon  bonds  in  a  penalty  has  been  almost  en- 
tirely uniform,  and  the  only  cases  extending  it  beyond  the  penalty 
and  costs  have  been  overruled  and  disregarded.  The  cases  are  col- 
lected in  Hurl.  Bonds,  107,  108,  and  the  rule  is  there  laid  down  in 
conformity  with  the  prevailing  authorities.  The  decisions  supposed 
to  favor  another  doctrine,  as  applicable  to  suits  brought  directly  upon 

II  Part  of  the  opinion  of  Campbell,  J.,  together  with  the  dissenting  opinioti 
of  Christiancy,  J.,  is  omitted. 


46  LIQUIDATION   OP   DAMAGES.  (Part    5 

bonds,  are  Francis  v.  Wilson,  Ryan  &  M.  105,  and  Lonsdale  v.  Church, 
3  Term  R.  388.  In  the  former  case  the  bond  was  not,  in  any  proper 
sense,  a  penal  bond,  as  the  penalty  was  in  the  exact  amount  of  the 
debt  mentioned  in  the  condition,  which  was  -made  expressly  to  carry 
interest.  It  was  apparent  that  the  sum  mentioned  could  not  be  leg-ally 
treated  as  a  penalty,  and  the  court  properly  enforced  it  as  a  simple 
money  bond  or  specialty.  Lonsdale  v.  Church,  supra,  is  more  di- 
rectly in  point,  as  the  court  refused  to  allow  a  defendant,  on  paying- 
into  court  the  penalty  and  costs,  to  obtain  a  discharge,  and  Buller,  J., 
denied  that  the  penalty  of  a  bond  limited  the  recovery.  But  this  judge 
seems  to  stand  alone  in  maintaining  the  doctrine.  Very  shortly  be- 
fore, in  White  v.  Sealy,  1  Doug.  49,  he  had,  on  the  hearing  of  a  similar 
application,  expressed  a  similar  opinion,  but  he  finally  concurred  with 
his  brethren  in  holding  that  he  had  been  mistaken.  In  Knight  v.  Mc- 
Lean, 3  Brown,  Ch.  496,  sitting  in  an  equity  cause,  he  allowed  inter- 
est beyond  the  penalty  of  a  bond,  but  was  overruled  by  Lord  Thurlow, 
who  held  that  there  could  be  no  such  allowance,  and  that  the  rule 
was  'the  same  in  equity  as  at  law.  In  Wilde  v.  Clarkson,  6  Term  R. 
303,  the  doctrine  of  Lonsdale  v.  Church,  supra,  was  expressly  re- 
pudiated and  overruled.  In  Hefiford  v.  Alger,  1  Taunt.  218,  the  former 
cases  were  referred  to,  and  Lord  Thurlow's  opinion  approved ;  and 
in  Branscombe  v.  Scarbrough,  6  Q.  B.  13,  where  an  action  was 
brought  on  a  replevin  bond  which  was  very  much  too  small  to  secure 
the  judgment,  the  court  said  that  granting  a  rule  to  show  cause  why 
an  allowance  should  not  be  made  beyond  'the  penalty  and  costs  would 
be  creating  a  doubt  where  no  doubt  existed.  It  cannot  be  said  that 
under  the  English  common-law  decisions  there  is  any  room  for  con- 
troversy on  the  subject.  It  is  only  where  a  suit  is  brought  on  some 
judgment  already  rendered  on  a  bond,  as  in  Blackmore  v.  Flemyng, 
7  Term  R.  446,  and  McClure  v.  Dunkin,  1  East,  436,  or  where  an 
action  is  brought  upon  some  distinct  covenant  in  a  bond  or  other  ob- 
ligation, that  the  penalty  becomes  unimportant;  but  even  in  such 
cases  the  penalty  is  not  made  the  debt  on  which  interest  runs.  The 
right  to  a  decree  in  equity  beyond  the  penalty  of  a  bond  is  denied  as 
clearly  and  consistently  as  at  law.  Where  a  debt  is  secured  as  such 
by  other  securities  besides  a  bond,  the  fact  that  a  bond  has  been  taken 
will  not  usually  afifect  the  remedy  on  the  other  obligations.  But  there 
is  no  authority  for  allowing  any  recovery  or  account  beyond  the  pen- 
alty when  the  bond  becomes  material.  The  only  cases  where  a  differ- 
ent result  has  been  reached  are  where  the  bond  debtor  has  resorted  to 
equity  'to  obtain  relief  from  legal  proceedings ;  and  then  it  has  been 
'held  that,  as  he  who  seeks  equity  must  do  equity,  he  might  be  com- 
pelled, after  submitting  his  case  to  the  jurisdiction  of  equity,  to  do 
what  was  just  under  the  circumstances,  and  not  to  reap  advantage  from 
a  delay  which  he  has  compelled  his  adversary  to  undergo.     *     *     *  12 

1*  See,  also,  Philbrook  v.  Burgess,  52  Me.  271  (1863). 


^I^ 


Part   3)  LIQUIDATION   OF  DAMAGES.  47 

WYMAN  V.  ROBINSON  et  al. 

(Supreme  Judicial  -Court  of  Maine,  18S2.    73  Me.  384,  40  Am.  Rep.  360.) 

Peters,  J.^'  The  important  question  presented  by  this  case  ts 
whether,  in  an  action  upon  a  replevin  bond  against  principal  and  sure- 
ties, when  the  damages  exceed  the  penalty  of  the  bond,  the  recovery 
must  be  limited  to  the  penalty,  or  whether  it  may  exceed  the  penalty 
so  far  as  to  include  interest  upon  the  amount  of  the  same  from  the 
date  of  'the  breach  of  the  bond.  We  think  the  reasonable  doctrine 
to  be  that,  so  far  as  necessar}'  to  secure  the  damages  sustained  by 
the  obligee,  the  recovery  may  go  beyond  the  sum  of  the  penalty,  by 
allowing  interest  on  such  sum  from  the  date  of  the  breach ;  such  in- 
terest not  to  be  considered  as  any  part  of  the  penalty,  but  as  damages 
for  the  nonpayment  or  detention  of  the  penalty  after  it  becomes  pay- 
able and  due. 

It  is  commonly  said  that  the  damages  cannot  exceed  the  penalty  of 
a  bond.  Rightly  understood,  -the  statement  is  true.  But  what  is  the 
penalty  in  a  bond  for  the  payment  of  damages?  It  is  the  amount 
which  the  obligors  agree  to  pay,  if  the  whole  penalty  be  needed  for 
the  purpose,  for  the  damages  sustained  by  the  obligee  by  a  breach  of 
the  bond,  the  amount  to  be  paid  as  soon  as  the  breach  occurs.  The 
obligee  is  to  have  the  penalty  at  a  particular  and  definite  time.  Im- 
mediately upon  a  breach  of  the  bond  the  penalty  is'  due  to  him.  If 
he  gets  it  then,  he  gets  what  the  contract  provides ;  if  he  gets  it  later, 
he  gets  less  than  what  the  contract  provides.  If,  then,  the  penalty 
be  paid  after  the  breach,  interest  should  be  added  for  the  detention 
of  the  penalty,  to  make  it  equivalent  to  a  payment  at  the  date  of  the 
breach. 

After  the  penalty  is  forfeited,  it  becomes  a  debt  due.  The  sureties 
then  stand  in  the  relation  of  principals  to  the  obligee,  owing  him  so 
much  money  then  due.  To  ascertain  the  precise  sum  may  require  cal- 
culation, but  that  is  certain  which  can  be  made  certain.  The  rule  com- 
mon to  contracts  generally  applies,— that  where  money  is  due,  and 
there  is  a  default  in  payment,  interest  is  to  be  added  as  damages.  The 
defendants  should  pay  damages  for  detaining  the  damages  which  they 
bound  themselves  to  pay  at  a  prior  date.  The  penalty  of  the  bond 
is  payable  because  the  principal  did  not  fulfill  his  obligation;  the 
interest  is  the  penalty  upon  the  sureties  for  not  fulfilling  theirs. 

In  some  cases  courts  appear  to  have  been  reluctant  to  allow  the  in- 
terest to  commence  before  the  date  of  the  writ  upon  the  penal  bond. 
But  why  not,  logically,  from  the  default  as  well  as  from  the  date  of 
the  writ?  Interest  is  allowable  from  the  date  of  a  writ  only  because 
a  defendant  is  considered  in  default  from  that  date.  Why  not  to  bt 
reckoned  from  an  earlier  date,  if  the  default  antedates  the  writ?     Ir. 

13  Part  of  the  opinion  is  omitted. 


48  LIQUIDATION   OF  DAMAGES.  (Part    3 

some  cases,  of  course,  it  would  not;  in  this  case  it  does.  It  might 
as  well  be  urged  that  -the  costs  of  an  action  upon  a  bond  should  not 
be  allowed  as  that  no  interest  should  be,  where  the  costs  would  carry 
the  execution  beyond  the  penalty  named  in  the  bond;  for  costs  are 
as  much  of  the  nature  of  a  penalty  as  interest  is  when  interest  is  al- 
lowed as  damages. 

We  feel  strongly  assured  that  the  rule,  as  declared  by  us,  is  main- 
tained by  a  great  majority  of  the  leading  American  authorities.  There 
appears  to  be  some  obscurity  and  confusion  in  quite  a  class  of  cases, 
growing  out  of  the  want  of  distinction  between  what  is  debt  or  penalty 
and  what  is  merely  damages  for  a  detention  of  the  debt  or  penalty, 
some  courts  trusting  to  the  general  rule,  without  stopping  to  notice 
differences.  Mr.  Sedgwick  seems  to  think  that  by  the  English  cases 
the  penalty  is  regarded  as  being  the  absolute  limit  of  recovery.  2 
Sedg.  Dam.  (6th  Ed.)  262.  Still  there  is  some  contrariety  of  view  in 
the  English  cases,  and  Sergeant  Williams  struck  the  key  of  the  doc- 
trine in  his  note  to  the  case  of  Gainsforth  v.  Griffith,  1  Saund.  51, 
note  1,  saying:  "But  cases  may  occur  where  the  obligee  may  recover 
more  than  the  penalty  of  the  bond,  as  where,  by  the  breach  of  the 
condition,  the  penalty  becomes  a  real  debt  due  from  the  obligor  to  the 
obligee."     *     *     *  i* 


DEVERILL  V.  BURNELL. 

(Court  of  Common  Pleas,  1873.     L.  R.  8  C.  P.  475.) 

The  plaintiff  had  shipped  from  London  to  South  America  certain 
goods  to  be  delivered  to  one  C.  W.  Bollaert  there  on  his  accepting 
certain  drafts  drawn  by  the  plaintiff  on  him.  The  defendant  was  given 
the  bills  of  lading  and  drafts  for  presentment  to  Bollaert  for  ac- 
ceptance, agreeing  to  deliver  the  bills  of  lading  on  acceptance  of  the 
drafts,  to  present  the  latter  for  payment  at  maturity  and  to  remit  the 
proceeds  thereof  if  the  same  were  paid,  and  in  case  they  should  not 
be  paid,  either  to  return  them  to  the  plaintiff,  or  pay  him  the  amount 
thereof.  The  declaration  alleged  a  delivery  of  the  bills  of  lading  and 
an  acceptance  of  the  drafts  by  Bollaert,  and  a  failure  on  the  part  of 
the  defendant  to  return  the  drafts  or  pay  the  amount  thereof. 

The  jury  found  that  the  bills  were  worthless,  and  a  verdict  was  en- 
tered for  the  plaintiff  for  a  farthing  damages. 

A  rule  nisi  had  been  obtained  for  a  new  trial,  or  to  increase  the 
amount  of  the  verdict  to  £107,  the  balance  of  the  amount  of  the  bills, 
after  deducting  certain  payments  on  account. 

14  See,  also,  Slosson  v.  Beadle,  7  Johns.  (N.  Y.)  72  (1810) ;  Stewart  v.  Bedell, 
79  Pa.  336  (1875);  Kemp  v.  Knickerbocker  Ice  Co.,  69  N.  Y.  45  (1871);  BelJ 
V.  Truit,  9  Bush  (Ky.)  257  (1873) ;  and  White  Sewing  Machine  Co.  v.  Dakin, 
86  Mich.  581,  49  N.  W.  583,  13  L.  R.  A.  313  (1891). 


Part   3)  LIQUIDATION  OF   DAMAGES.  49 

Grove,  J.  The  question  in  the  present  case  turns  upon  the  con- 
struction to  be  put  upon  the  promise  alleged  in  this  declaration.  The 
question  is  an  extremely  doubtful  one,  and  unfortunately  there  is  a 
division  of  opinion  in  the  court.  I  think,  with  the  majority  of  the 
court,  that  the  true  construction  of  the  promise  alleged  is  that  it  is  not 
in  the  strictest  sense  an  alternative  promise,  but  a  promise  that  the  de- 
fendant would  return  the  bills,  and  if  he  did  not  return  them  he  would 
pay  the  amount  of  them.  In  that  case  it  is  clear  that  the  defendant 
would  be  bound,  if  he  did  not  return  the  bills,  to  pay  the  amount  of 
them.  The  promise  relates  to  a  matter  of  business,  and  must  receive 
the  construction  which  would  be  given  to  the  language  used  by  busi- 
ness men  in  the  ordinary  course  of  business.  If,  in  the  ordinary  af- 
fairs of  life,  I  say  to  a  man,  "I  will  return  your  horse  to-morrow,  or 
pay  you  a  day's  hire  of  him,"  the  only  reasonable  construction  is 
that,  if  I  do  not  return  the  horse,  I  will  pay  a  day's  hire.  If  the  use 
of  the  word  "or"  compels  us  to  regard  this  a-s  a  purely  alternative 
promise,  'then  the  same  construction  would  be  applicable  to  the  case 
I  have  taken  as  an  illustration,  which  would  be  plainly  unreasonable. 
Here  the  parties  seem  to  me  by  their  agreement  to  have  said  that  they 
will  not  estimate  the  damage  to  accrue  to  the  plaintiff  by  the  nonreturn 
of  the  bills  at  the  actual  value  of  the  bills,  whatever  it  may  be ;  but 
they  choose  to  say  that,  if  'the  bills  are  not  returned,  the  defendant 
shall  be  bound  to  pay  the  amount  of  them.  The  plaintiff  might  not 
choose  to  take  the  risk  of  a  change  of  circumstances,  which  might 
affect  the  value  either  way,  but  might  prefer  to  assess  the  value  at 
the  amount  of  the  bills.  It  seems  to  me  that  the  question  is,  what  is 
the  meaning  of  this  promise  in  ordinary  parlance?  and  we  are  en- 
titled to  give  it  such  meaning  for  'the  purposes  of  the  present  applica- 
tion.   I  therefore  tliink  the  rule  should  be  absolute. 

BoviLL,  C.  J.^°  I  unfortunately  differ  from  the  rest  of  the  court. 
The  question  appears  'to  me  to  be  one  of  great  difficulty,  and  my  mind 
has  fluctuated  considerably  during  the  course  of  the  argument.  *  *  * 
The  question,  as  it  seems  to  me,  turns  entirely  on  the  construction 
of  the  language  in  which  the  contract  is  alleged  in  the  declaration. 
If  the  contract  as  there  stated  is  simply  in  the  alternative  to  do  one  of 
two  things,  it  would  be  satisfied  by  'the  performance  of  either,  and  the 
damages  would  be  the  loss  occasioned  by  nonperformance  of  that  al- 
ternative which  would  be  least  beneficial  to  the  plaintiff.  If  the  true 
construction  be  that  of  the  two  things  to  be  done  on€  depended  upon 
the  nonperformance  of  the  other — tliat  is,  if  the  defendant  did  not  re- 
turn the  bills,  then  he  should  pay  the  amount  of  them — the  damages 
would  be  'the  nonpayment  of  that  amount.  The  rule  of  law  is  clear 
that  in  the  case  of  alternative  contracts  the  person  who  has  to  perform 

15  Tart  of  the  opinion  of  Bovill,  0.  J.,  Is  omitted,  and  the  statement  of  facts 
Is  rewritten. 

Gilb.Dam. — 4 


50  LIQUIDATION  OF  DAMAGES.  (Part   3 

the  contract  has  the  right  to  elect  which  branch  of  the  alternative  he 
will  perform.  On  the  other  hand,  it  is  equally  clear,  if  the  contract 
is  to  do  a  thing,  and  if  not  to  pay  a  sum  of  money,  then  the  damages 
for  not  doing  the  thing  are  the  sum  of  money.  Under  which  class 
does  this  contract  range  itself?  It  must  depend  on  the  language  in 
which  it  is  stated.  I  come  to  the  conclusion  that  the  contract  stated 
in  this  declaration  is  one  of  the  class  which  may  be  called  strictly  al- 
ternative, and  would  be  satisfied  by  the  performance  of  either  branch 
of  the  alternative,  at  election.  The  rule  as  to  this  class  of  contracts 
is  laid  down  by  Maule,  J.,  in  Cockburn  v.  Alexander,  6  C.  B.  791,  at 
page  814 ;   18  Law  J.  C.  P.  7i. 

Many  instances  might  be  put ;  e.  g.,  the  case  suggested  in  argument. 
A  man  might  contract  that  immediately  after  a  race  he  would  deliver 
over  his  horse  Ajax,  or  pay  ilOOO.  In  that  case  the  contract  would  be 
performed  by  either  delivering  the  horse  or  the  money,  at  election. 
There  the  efifect  of  the  alternative  might  vary  according  to  circum- 
stances, for,  if  the  horse  lost  the  race,  the  owner  would  probably  de- 
sire to  deliver  the  horse;  but,  if  it  won,  he  might  prefer  to  part  with 
the  money.  What  would  the  damages  be  in  such  a  case?  They  would, 
according  to  the  rule  laid  down  by  Maule,  J.,  be  the  loss  occasioned 
by  the  nonperformance  of  the  contract  to  the  plaintiff;  and,  if  the 
contract  could  have  been  performed  by  the  performance  of  'the  alter- 
native least  beneficial  to  the  plaintifif,  the  measure  of  damages  would 
be  regulated  by  tlie  loss  occasioned  by  nonperformance  of  that  alter- 
native. It  may  be  said  that  the  case  I  have  put  is  like  the  present,  and 
such  a  contract  means  that  the  owner  is  to  deliver  the  horse,  and,  if 
not,  to  pay  the  ilOOO ;  but  it  seems  to  me  that,  if  the  terms  of  the 
contract  are,  as  alleged  in  the  declaration,  in  the  alternative,  by  rea- 
son of  the  use  of  the  disjunctive  conjunction  "or,"  we  are  not  en- 
titled to  import  into  it  the  condition  that  if  the  one  thing  is  not  done 
the  other  shall  be,  which  is  to  turn  it  from  an  alternative  contract  into 
one  of  another  character.  One  test,  which  appears  to  me  to  be  ap- 
plicable, is  to  reverse  the  order  in  which  the  two  alternatives  are  men- 
tioned. Suppose  the  contract  alleged  were  to  pay  ilOOO  or  to  deliver 
the  horse.  Clearly  under  such  a  contract  there  would  be  an  option 
to  do  either,  and  it  could  not  be  said  that  it  was  a  contract  to  pay  the 
£1000,  or,  if  not,  to  deliver  the  horse.  So  also  with  the  present  con- 
tract, if  it  were  alleged  to  be  to  pay  the  amount  of  the  bills  or  to  de- 
liver them  up.  Could  it  then  be  said  that  it  was  anything  but  a  purely 
alternative  contract;  that  it  was  a  contract  to  pay  the  amount,  and, 
if  not,  to  deliver  up  the  bills;  and  that  damages,  perhaps  exceeding 
the  amount  of  the  bills,  might  be  recovered  for  the  default  in  returning 
them?  Here  the  jury  have  assessed  the  value  of  the  bills  at  one  far- 
thing, but  in  some  cases  the  actual  damages  or  nonreturn  of  the  bills 
might  exceed  the  amount  of  them.  In  whatever  order  the  two  alter- 
natives are  put,  it  appears  to  me  that,  the  disjunctive  conjunction  be- 


Part   3)  LIQUIDATION   OF   DAMAGES.  51 

ing  used,  the  contract  as  alleged  in  the  declaration  gives  an  option 
which  alternative  the  defendant  will  adopt.  It  seems  to  me  that,  to 
read  the  contract  as  suggested  by  my  learned  brethren,  is  to  make  a 
fresh  contract  for  the  purpose  of  giving  effect  to  speculative  views 
as  to  the  intention  of  the  parties,  and  to  alter  the  natural  signification 
of  the  language  that  is  used.  It  is  clear,  on  the  face  of  the  declaration, 
that  the  pleader  treated  this  as  an  alternative  contract,  for  the  allega- 
tion of  performance  of  conditions  precedent  is  that  all  things  were 
done  necessary  to  entitle  the  plaintiff,  not  to  payment  of  the\mount 
of  the  bills,  but  to  the  return  of  the  bills  or  the  payment  of  the  amount 
of  them.  It  may  have  been  that  it  was  with  reference  to  this  view 
of  the  declaration  that  the  defendant  allowed  judgment  to  go  by  de- 
fault. Under  these  circumstances  I  think  we  ought  to  construe  the 
declaration  strictly,  and  are  not  entitled  to  substitute  words  M'hich  im- 
port a  condition  that  one  alternative  shall  be  performed  if  the  other 
is  not,  when,  the  disjunctive  conjunction  "or"  being  used,  the  natural 
meaning  is  a  simple  alternative.  I  have  had  considerable  doubt  on 
the  matter,  and  regret  to  differ  from  my  learned  brethren,  but  I  feel 
bound  to  express  the  opinion  at  which  I  have  arrived.  I  am  of  opinion 
that  this  rule  should  be  discharged. 
Rule  absolute. 


PEARSON  V.  WILLIAMS'  ADM'RS. 
(Supreme  Court  of  New  York,  1840.    "2.^  Wend.  244.) 

_  Bronson,  J.i«  *  *  *  The  defendant,  for  a  specified  considera- 
tion, agreed  that  he  would  erect  two  brick  houses  on  the  lots  by  a 
certain  day,  or  in  default  of  doing  so,  would  afterwards  pay  the  intes- 
tate four  thousand  dollars  on  demand.  This  was  an  optional  agree- 
ment. The  defendant  had  the  choice  of  erecting  the  houses  by  the 
day;  or  of  omitting  to  do  so,  and  then  paying  the  specified  sum  of 
money.  He  made  his  election  by  omitting  to  build  within  the  time. 
The  obligation  to  pay  the  four  thousand  dollars,  thereupon  became  ab- 
solute; and  the  plaintiffs  were,  I  think,  entitled  to  recover  that  sum, 
with  interest  from  the  time  of  the  demand. 

This  does  not  belong  to  the  class  of  cases  in  which  the  question  of 
liquidated  damages  has  usually  arisen.  It  will  be  found  in  most,  if  not 
all,  of  those  cases,  that  there  was  an  absolute  agreement  to  do,  or  not 
to  do,  a  particular  act,  followed  by  a  stipulation  in  relation  to  the 
amount  of  damages  in  case  of  a  breach;  and  in  declaring  upon  the 
contract,  the  breach  has  been  well  assigned  by  alleging  that  the  party 
did,  or  omitted  to  do,  the  particular  act.  But  here,  there  is  no  absolute 
engagement  to  build  the  houses.     It  was  optional  with  the  defendant 

16  Part  of  the  opinion  is  omitted. 


52  LIQUIDATION  OF  DAMAGES.  (Part   3 

whether  he  would  build  them  or  not;  and  there  would  have  been  no 
sufficient  breach,  if  the  plaintiffs  had  stopped  with  alleging  that  the 
houses  were  not  built.  This  is  not  a  covenant  to  build,  with  a  liquida- 
tion of  the  damages  in  case  of  nonperformance ;  but  it  is  a  covenant  to 
build  within  a  specified  time,  or  afterwards  to  pay  a  sum  of  money. 
The  money  is  not  to  be  paid  by  way  of  damages  for  not  building  the 
houses ;  but  is  to  be  paid,  if  the  houses  are  not  built,  as  part  of  the 
contract  price  for  the  lots  conveyed  by  the  intestate. 

Again :  This  is  not  simply  an  alternative  covenant,  to  build,  or  pay 
a  sum  of  money,  within  a  specified  period.  If  it  were  so,  the  question 
of  damages  would,  perhaps,  be  open.  But  it  is  an  agreement  to  build 
by  a  certain  day,  or  afterwards  pay  a  sum  of  money.  When  the  day 
for  building  had  gone  by,  it  was  then  merely  a  covenant  to  pay  money. 
It  was  necessary,  in  declaring,  to  allege  that  the  houses  were  not  built — 
not,  however,  because  that  part  of  the  contract  was  any  longer  in  force 
— but  by  way  of  showing  that  the  event  had  happened  upon  which  the 
defendant  agreed  to  pay  the  money. (  It  had  now  become  a  simple  cove- 
nant to  pay  money ;  and  like  other  cases  where  there  is  an  agreement  to 
pay  a  gross  sum  of  money,  that  sum,  with  interest  from  the  time  it 
became  payable,  forms  the  measure  of  damages. 

Let  us  reverse  the  order  of  these  stipulations,  and  suppose  that  the 
defendant  had  agreed  to  pay  the  intestate  four  thousand  dollars  by  a 
particular  day,  or  in  default  of  so  doing  that  he  would  afterwards  build 
the  houses.  The  defendant  might  then  have  discharged  himself  by  the 
payment  of  the  money  by  the  day ;  or  he  might,  at  his  election,  suffer 
the  day  to  pass,  and  then  build  the  houses.  If  he  did  neither,  the  intes- 
tate would  have  an  action :  but  the  question  of  damages  would  turn 
wholly  on  the  agreement  to  build.  The  enquiry  would  be,  either  how 
much  was  it  worth  to  build,  or  how  much  has  the  intestate  lost  by  the 
neglect.  The  day  for  paying  the  four  thousand  dollars  having  gone  by, 
that  clause  of  the  covenant  could  have  no  possible  influence  upon  the 
question  of  damages.  The  recovery  might  be  either  more  or  less  than 
that  sum.  In  short,  the  intestate  would  recover  damages  for  not  build- 
ing, whatever  those  damages  might  appear  to  be.  So  here  taking  the 
stipulations  in  the  order  in  which  they  stand  in  the  contract,  the  ques- 
tion of  damages  turns  wholly  on  the  agreement  to  pay  the  four  thou- 
sand dollars  in  a  certain  event.  The  event  having  happened,  the  plain- 
tiffs are  entitled  to  that  sum,  without  any  reference  to  the  fact  that 
the  defendant  might  at  one  time  have  discharged  himself  by  building 
the  houses. 

We  have  no  right  to  call  this  sum  of  four  thousand  dollars  a  penalty, 
or  say  that  it  was  inserted  in  the  contract  for  the  purpose  of  ensuring 
the  erection  of  the  houses.  There  is  nothing  in  the  covenant  which  will 
warrant  such  an  inference.  W^e  are  to  read  the  covenant  as  the  par- 
ties have  made  it;  and  then  it  appears  that  this  sum  of  four  thousand 
dollars  was  not  inserted  for  the  benefit  of  the  intestate,  but  as  a 


(^■^^^UIJ' 


Part   3)  LIQUIDATION  OF   DAMAGES.  53 

privilege  to  the  defendant.  The  intestate  had  no  option,  but  the  de- 
fendant had.  He  was  at  hberty  to  discharge  himself  from  the  cove- 
nant by  building  the  houses,  if  he  deemed  that  course  most  for  his  in- 
terest or  convenience ;  or  he  might  elect,  as  he  has  done,  to  omit  build- 
ing and  pay  the  money.  So  far  as  we  can  judge  from  his  acts,  he  deems 
that  course  most  beneficial  to  himself. 

Whether  the  plaintiffs,  or  the  persons  whom  they  represent,  will  be 
better  off  if  they  got  the  money,  than  they  would  have  been  had  the 
houses  been  put  up,  must,  from  the  nature  of  the  case,  be  a  difficult 
question  to  decide;  and  that  is  the  reason  why  the  parties  should  be 
left  to  settle  the  matter  for  themselves,  as  they  have  done  by  the  con- 
tract. But  if  we  could  see  clearly,  that  the  building  of  the  houses 
would  have  been  of  little  importance  to  the  plaintiffs,  that  could  not 
alter  the  case.  Astley  v.  Weldon,  2  Bos.  &  P.  346 ;  Dakin  v.  Williams, 
17  Wend.  447.     *     *     * " 


SMITH  V.  BERGENGREN. 

(Supreme  Judicial  Court  of  Massachusetts,  1891.    153  Mass.  236,  26  N.  E. 
690,  10  L.  R.  A.  768.) 

Holmes,  J.  The  defendant  covenanted  never  to  practice  his  pro- 
fession in  Gloucester  so  long  as  the  plaintiff  should  be  in  practice  there, 
provided,  however,  that  he  should  have  the  right  to  do  so  at  any  time 
after  five  years  by  paying  the  plaintiff  $2,000,  "but  not  otherwise." 
This  sum  of  $2,000  was  not  liquidated  damages ;  still  less  was  it  a 
penalty.  It  was  not  a  sum  to  be  paid  in  case  the  defendant  broke  his 
contract  and  did  what  he  had  agreed  not  to  do.  It  was  a  price  fixed  for 
what  the  contract  permitted  him  to  do  if  he  paid. 

The  defendant  expressly  covenanted  not  to  return  to  practice  in 
Gloucester  unless  he  paid  this  price.  It  would  be  against  common 
sense  to  say  that  he  could  avoid  the  effect  of  thus  having  named  the 
sum  by  simply  returning  to  practice  without  paying,  and  could  escape 
for  a  less  sum  if  the  jury  thought  the  damage  done  the  plaintiff  by  his 
competition  was  less  than  $2,000.  The  express  covenant  imported  the 
further  agreement  that  if  the  defendant  did  return  to  practice  he  would 
pay  the  price.  No  technical  words  are  necessary  if  the  intent  is  fairly 
to  be  gathered  from  the  instrument.  St.  Albans  v.  Ellis,  16  East,  352 ; 
Stevinson's  Case,  1  Leon.  324;    Bank  v.  Marshall,  40  Ch.  Div.  112. 

If  the  sum  had  been  fixed  as  liquidated  damages,  the  defendant 
would  have  been  bound  to  pay  it.  Gushing  v.  Drew,  97  Mass.  445 ; 
Lynde  v.  Thompson,  2  Allen,  456;  Holbrook  v.  Tobey,  66  Me.  410, 
22  Am.  Rep.  581.  But  this  case  falls  within  the  language  of  Lord 
Mansfield  in  Lowe  v.  Peers,  4  Burrows,  2225,  2229,  that  if  there  is  a 
covenant  not  to  plough,  with  a  penalty,  in  a  lease,  a  court  of  equity  will 

17  See,  on  appeal,  26  Wend.  630  (1«41). 


54  LIQUIDATION  OP  DAMAGES.  (Part   3 

relieve  against  the  penalty;  "but  if  it  is  worded  'to  pay  i5  an  acre  for 
every  acre  ploughed  up,'  there  is  no  alternative ;  no  room  for  any  relief 
against  it;  no  compensation.  It  is  the  substance  of  the  agreement." 
See,  also.  Ropes  v.  Upton,  125  Mass.  258,  260.  The  ruling  excepted  to 
did  the  defendant  no  wrong.  In  the  opinios  of  a  majority  of  the 
court,  the  exceptions  must  be  overruled. 


PART  IV. 
DISCRETIONARY  DAMAGES. 


CHAPTER  I. 
IN  GENERAL. 


TOWNSEND  V.  HUGHES. 

(Court  of  Ck)mmon  Pleas,  2  Leach,  150.) 
The  plaintiffs  brought  an  action  of  scandalum  magnatum  for  these 
words  spoken  of  him  by  the  defendant,  viz.,  "He  is  an  unworthy  man, 
and  acts  against  law  and  reason."    Upon  not  guilty  pleaded,  the  case 
was  tried,  and  the  jury  gave  the  plaintiff  four  thousand  pounds  dam- 
ao-gs      *     *     *i 
"north    Chief  Justice,  said:   In  cases  of  fines  for  criminal  matters, 
a  man  is  to  be  fined  by  Magna  Charta  with  a  salvo  contenemento  suo ; 
and  no  fine  is  to  be  imposed  greater  than  he  is  able  to  pay ;  but  m  civil 
actions  the  plaintiff  is  to  recover  by  way  of  compensation  for  the  dam- 
ages he  hath  sustained,  and  the  jury  are  the  proper  judges  thereof. 
This  is  a  civil  action  brought  by  the  plaintiff  for  words  spoken  of  him, 
which  if  they  are  in  their  own  nature  actionable,  the  jury  ought  to  con- 
sider the  damage  which  the  party  may  sustain;    but  if  a  particular 
averment  of  special  damages  make  them  actionable,  then  the  jury  are 
only  to  consider  such  damages  as  are  already  sustained,  and  not  such 
as  may  happen  in  future,  because  for  such  the  plaintiff  may  have  a 
new  action.    He  said,  that  as  a  Judge  he  could  not  tell  what  value  to  se 
upon  the  honor  of  the  plaintiff;    the  jury  have  given  four  thousand 
pounds,  and  therefore  he  could  neither  lessen  the  sum  or  grant  a  new 
trial,  especially  since  by  the  law  the  jury  are  judges  of  the  damages: 
and  it  would  be  very  inconvenient  to  examine  upon  what  account  they 
gave  their  verdict;   they,  having  found  the  defendant  guilty,  did  be- 
lieve the  witnesses,  and  he  could  not  now  make  a  doubt  of  their  cred- 
ibility. 

Wyndham,  Justice,  accorded  in  omnibus. 

Atkins   Justice,  contra.     That  a  new  trial  should  be  granted    for 
it  is  every  Lfs  practice;   and  he  remembered  the  case  of  Gouldslon 

1  Part  of  the  reporter's  statement  of  the  case  is  omitted. 

(55) 


M 


ly% 


56  DISCRETIONARY  DAMAGES.  (Part   4 

V.  Wood  in  the  King's  Bench,  where  the  plaintiff  in  an  action  on  the 
case  for  words  for  calling  of  him  bankrupt,  recovered  fifteen  hundred 
pounds,  and  that  court  granted  a  new  trial,  because  the  damages  were 
excessive.  The  jury  in  this  case  ought  to  have  respect  only  to  the  dam- 
age which  the  plaintiff  sustained,  and  not  to  do  an  unaccountable  thing 
that  he  might  have  an  opportunity  to  show  himself  generous;  and  as 
the  court  ought  with  one  eye  to  look  upon  the  verdict,  so  with  the  oth- 
er they  ought  to  take  notice  what  is  contained  in  the  declaration,  and 
then  to  consider  whether  the  words  and  damages  bear  any  proportion ; 
if  not,  then  the  court  ought  to  lay  their  hands  upon  the  verdict:  it  is 
true,  they  cannot  lessen  the  damages,  but  if  they  are  too  great  the 
court  may  grant  a  new  trial. 

ScROGGS,  Justice,  accorded  with  North  and  Wyndham,  that  no  new 
trial  can  be  granted  in  this  cause.  He  said,  that  he  was  of  counsel 
with  the  plaintiff  before  he  was  called  to  the  bench,  and  might  there- 
fore be  supposed  to  give  judgment  in  favor  of  his  former  client,  being 
prepossessed  in  the  cause,  or  else  (to  shew  himself  more  signally  just) 
might  without  considering  the  matter  give  judgment  against  him; 
but  that  now  he  had  forgot  all  former  relation  thereunto;  and  there- 
fore delivered  his  opinion,  that  if  he  had  been  of  the  jury  he  should 
not  have  given  such  a  verdict;  and  if  he  had  been  plaintiff  he  would 
not  take  advantage  of  it;  but  would  overcome  with  forgiveness  such 
follies  and  indiscretions  of  which  the  defendant  had  been  guilty;  but 
that  he  did  not  sit  there  to  give  advice,  but  to  do  justice  to  the  people. 
He  did  agree  that  where  an  unequal  trial  was  (as  such  must  be  where 
there  is  any  practice  with  the  jury),  in  such  case  it  is  good  reason  to 
grant  a  new  trial;  but  no  such  thing  appearing  to  him  in  this  case,  a 
new  trial  could  not  be  granted.  Suppose  the  jury  had  given  a  scanda- 
lous verdict  for  the  plaintiff,  as  a  penny  damages,  he  could  not  have  ob- 
tained a  new  trial  in  hopes  to  increase  them,  neither  shall  the  defend- 
ant in  hopes  to  lessen  them.  And  therefore  by  the  opinion  of  these 
three  Justices  a  new  trial  was  not  granted. 


COOK  V.  BEALE. 

(Court  of  King's  Bench,  1696.    1  Ld.  Raym.  176.) 

Trespass,  assault  and  battery.  The  plaintiff  declares,  that  the  de- 
fendant cum  manu  sua  ipsum  Thomam  Cook  super  sinistrum  oculum 
percussit  et  violavit  ita  quod  the  said  Thomas  Cook,  viz.,  the  plaintiff, 
penitus  inhabilis  devenit  ad  scribendum  vel  legendum,  being  an  officer 
of  the  excise,  &c.  Not  guilty  pleaded.  Verdict  for  the  plaintiff.  And 
Birch,  Serjeant,  moved,  that  the  court  would  increase  the  damages, 
upon  affidavit  that  the  plaintiff  had  lost  his  eye.  But  the  court  ordered 
the  plaintiff  to  appear  in  court  in  person,  for  otherwise  they  said,  that 
they  could  not  increase  the  damages ;    upon  which  the  plaintiff  was 


Ch.  1)  IN  GENERAL.  57 

brought  into  court.     And  afterwards  the  court  after  several  motions 
resolved : 

1.  That  if  the  word  mayhemiavit  is  not  in  the  declaration,  yet  if  the 
declaration  be  particular,  so  that  it  appears  by  the  description,  that 
the  wound  was  a  maim,  it  is  sufficient,  and  the  court  may  increase 
damages.    Rast  Appeal,  46,  8  Hen.  IV,  21b. 

2.  Resolved,  That  the  court  may  increase  the  damages  if  the  wound 
be  apparent,  though  it  be  not  a  maim.  And  so  it  was  done  in  the  case 
of  the  Lord  Foliot.  Therefore  in  this  case,  because  the  wound  is 
visible,  though  it  be  no  maim  (for  it  is  not  a  maim  because  the  eye 
is  not  wholly  out,  but  the  plaintiff  only  declares,  quod  inhabilis  ad 
legendum  vel  scribendum  devenit  by  the  wound)  yet  damages  may  be 
increased.  And  Powell,  Justice,  said,  that  Holt,  Chief  Justice  was  of 
that  opinion.  So  (per  Powell,  Justice)  though  the  loss  of  a  nose 
is  not  a  maim,  to  bring  an  action  felonice  for  the  loss  of  it,  yet  the 
court  may  in  such  case  increase  the  damages.  And  he  said,  that  the 
court  might  increase  the  damages  upon  a  writ  of  inquiry,  because  that 
was  but  a  bare  inquest  of  office.  Jervis  v.  Lucas,  Style,  345;  Mallet 
v.  Ferrers,  1  Leon.  139 ;  Dames  v.  Rock,  Bendl.  158 ;  Le  Vicar  de 
Halifax,  Littlet.  Rep.  51;  Hutt.  53,  121;  Burford  v.  Dodwell,  1  Sid. 
433 ;  Dodwell  v.  Burford,  1  Mod.  24,  were  cited,  and  a  case  between 
Swalley  and  Babington,  where  in  a  general  action  of  assault,  battery, 
and  wounding,  upon  view  the  damages  were  increased  about  four 
years  ago,  upon  the  motion  of  Serjeant  Lovell. 

3.  Resolved,  That  the  justices  of  nisi  prius  could  not  increase  the 
damages;  but  if  evidence  be  given  of  a  great  wound,  they  may  in- 
dorse it  upon  the  postea,  and  upon  that  certificate  the  court  here  will 
increase  the  damages.  8  Hen.  IV,  23,  Latch,  223,  Hooper  v.  Pope, 
where  there  was  neither  mayhemiavit  in  the  declaration,  nor  the  wound 
described  specially ;  yet  it  being  indorsed  upon  the  postea,  that  evidence 
was  given  of  a  wound,  the  damages  were  increased  upon  the  view. 
39  Edw.  Ill,  20b ;  22  Edw.  Ill,  11 ;  Davis  v.  Foliot,  Style,  310 ;  Aus- 
tin V.  Hilliers,  Hardr.  408.  But  per  Powell,  Justice,  if  the  cause  be 
'tried  before  a  judge  of  the  same  court,  where  the  motion  is  made  to 
increase  the  damages,  there  is  no  need  to  have  any  indorsement  upon 
the  postea.  (Note.  This  cause  was  tried  before  himself.)  The  dam- 
ages in  the  principal  case  were  increased  to  £40. 


BEARDMORE  v.  CARRINGTON. 
(Ck)urt  of  Common  Pleas,  17G4.     2  Wils.  1244.) 

An  action  of  trespass  and  false  imprisonment,  in  that  the  defend- 
ants, acting  under  an  illegally  issued  warrant,  broke  open  plaintiff's 
dwelling,  opened  drawers  and  desks,  read  secret  and  private  letters, 
carried  away  private  documents,  and  subsequently  imprisoned  plain- 


58  DISCRETIONARY  DAMAGES.  (Part   4 

tiff  for  six  and  a  half  days.  The  jury  found  a  verdict  for  plaintiff 
for  one  thousand  pounds.* 

Curia.  We  are  called  upon,  on  our  oaths  to  say,  whether  these  are 
excessive  damages  or  not,  and  ought  to  have  very  clear  evidence  be- 
fore us,  before  we  can  say  they  are  excessive.  The  jury  were  directed 
to  assess  damages  for  the  plaintiff  according  to  the  evidence  given, 
under  an  idea,  that  the  defendants  could  not  by  law  justify  the  tres- 
pass under  this  warrant  by  any  manner  of  plea  whatsoever.  It  is  clear 
that  the  practice  of  granting  new  trials  is  modern,  and  that  courts  an- 
ciently never  exercised  this  power,  but  in  some  particular  cases  they 
corrected  the  damages  from  evidence  laid  before  'them.  There  is  great 
difference  between  cases  of  damages  which  be  certainly  seen,  and 
such  as  are  ideal,  as  between  assumpsit,  trespass  for  goods  where  the 
sum  and  value  may  be  measured,  and  actions  of  imprisonment,  ma- 
licious prosecution,  slander,  and  other  personal  torts,  where  the  dam- 
ages are  matter  of  opinion,  speculation,  ideal ;  there  is  also  a  differ- 
ence between  a  principal  verdict  of  a  jury,  and  a  writ  of  inquiry  of 
damages,  the  latter  being  only  an  inquest  of  office  to  inform  the  con- 
science of  the  court,  and  which  they  might  have  assessed  themselves 
without  any  inquest  at  all ;  only  in  the  case  of  maihem,  courts  have  in 
all  ages  interposed  in  that  single  instance  only;  as  to  the  case  of  the 
writ  of  inquiry  in  the  year-book  of  H.  4.  we  doubt  whether  what  is 
said  by  the  court  in  that  case  be  right.  That  they  would  abridge  the 
damages  unless  plaintiff  would  release  part  thereof,  because  there  is 
not  one  case  to  be  found  in  the  year-books  wherever  the  court  abridged 
the  damages  after  a  principal  verdict,  and  this  is  clear  down  to  the 
time  of  Palmer's  Rep.  314,  much  less  have  they  interposed  in  increas- 
ing damages,  except  in  the  case  of  maihem ;  one  side  says  no  attaint 
lies  (in  cases  of  tort)  for  excessive  damages;  the  other  side  says  it 
does ;  we  give  no  opinion  as  to  that  point ;  but  it  is  said  in  100  cases 
in  the  books  that  an  attaint  does  lie.  See  10  Rep.  119,  Lord  Cheney's 
Case. 

All,  or  most  of  the  cases  of  new  trials,  are  where  juries  have  mis- 
demeaned  themselves  contrary  to  their  oath ;  in  the  case  of  Wood  v. 
Gunston,  in  Stiles,  466  (1655),  the  misconduct  of  the  jury  was  cer- 
tainly an  ingredient,  and  so  it  appears  from  the  case  of  Roe  v. 
Hawkes,  in  1  Lev.  97.  Some  books  say  it  was  a  trial  at  bar,  and  it 
is  highly  probable  there  was  some  evidence  that  the  jury  had  been  tam- 
pered with;  and  this  was  certainly  the  very  first  case  of  a  new  trial, 
and  from  that  period  the  courts  have  exercised  the  power  of  granting 
new  trials  in  several  cases;  as  when  the  jury  find  contrary  to  the 
judges'  directions  in  point  of  law,  when  they  find  directly  contrary  to 
the  evidence,  (that  is  to  say)  against  evidence  all  on  one  side,  for  if 
there  be  evidence  on  both  sides,  the  court  never  interposes  in  that  case ; 
as  to  granting  the  first  new  trial  in  Stiles,  466,  there  is  great  reason 

♦The  statement  of  facts  is  rewritten. 


Ch.  1)  IN  GENERAL.  59 

(as  was  said  before)  to  think  it  was  for  misbehaviour  in  the  jury; 
it  was  an  action  for  words ;  so  was  the  Case  of  Lord  Townsend,  2 
Mod.  250,  for  words,  and  £4000.  damages,  where  the  court  refused  to 
grant  a  new  trial;  and  if  a  court  could  not  say  that  those  damages 
were  excessive,  they  can  hardly  say  that  damages  are  excessive  in 
any  case  of  slander  whatever;  and  this  case  has  never  been  contra- 
dicted or  denied  to  be  law ;  the  Case  of  Ash  and  Ash,  Comb.  357,  was 
plainly  for  'the  misdemeanor  of  the  jury  in  refusing  to  answer  the 
judge  when  he  asked  what  ground  or  reason  they  went  upon;  to  be 
sure  judges  are  to  advise,  but  not  to  controul  juries;  and  my  Lord 
Holt  and  the  King's  Bench  did  right,  in  granting  a  new  trial  in  that 
case.  In  the  case  of  Wilmot  v.  Berkley,  frin.  31  &  32  Geo.  II,  B.  R., 
which  was  an  action  for  criminal  conversation,  the  jury  gave  ioOO. 
damages  against  the  defendant,  and  upon  affidavits  that  he  was  only 
a  clerk  in  low  circumstances,  and  unable  to  pay  so  large  a  sum,  it  was 
moved  for  a  new  trial,  but  the  court  refused  to  grant  even  a  rule  to 
shew  cause,  because  in  cases  of  tort  the  jury  are  the  only  proper 
judges  of  the  damages:  We  are  now  come  to  the  case  in  1  Stra.  G91, 
Chambers  v.  Robinson,  which  seems  to  be  the  only  case  wherever  a 
new  trial  was  granted  merely  for  the  excessiveness  of  damages  only; 
we  are  not  satisfied  with  the  reason  given  in  that  case,  and  think  it  of 
no  weight,  and  want  to  know  the  facts  upon  which  the  court  could 
pronounce  the  damages  to  be  excessive ;  the  principle  on  which  it  was 
granted,  mentioned  in  Strange,  was  to  give  the  defendant  a  chance  of 
another  jury;  this  is  a  very  bad  reason,  for  if  it  was  not,  it  would 
be  a  reason  for  a  third  and  fourth  trial,  and  would  be  digging  up  the 
constitution  by  the  roots,  and  therefore  we  are  free  to  say  this  case  is 
not  law;  and  that  there  is  not  one  single  case,  (that  is  law),  in  all  the 
books  to  be  found,  where  the  court  has  granted  a  new  trial  for  ex- 
cessive damages  in  actions  for  torts. 

It  was  strongly  argued  at  the  trial  of  this  cause,  that  the  jury  were 
to  measure  the  damages  by  what  the  defendant  had  suffered  by  this 
trespass  and  six  days  and  a  half  imprisonment ;  but  this  was  thought 
a  gross  absurdity  by  the  judge  who  presided  there. 

We  desired  to  be  understood  that  this  court  does  not  say,  or  lay 
down  any  rule  that  there  can  never  happen  a  case  of  such  excessive 
damages  in  tort  where  the  court  may  not  grant  a  new  trial;  but  in 
that  case  the  damages  must  be  monstrous  and  enormous  indeed,  and 
such  as  all  mankind  must  be  ready  to  exclaim  against,  at  first  blush. 

The  nature  of  the  trespass  in  the  present  case  is  joint  and  several ; 
and  the  plaintiff  has  still  another  action  against  Lord  Halifax,  who  it 
is  said  is  more  culpable  than  the  defendants,  who  are  only  servants, 
and  have  done  what  he  commanded  them  to  do,  and  therefore  the 
damages  are  excessive  as  to  them;  but  we  think  this  is  no  topic  of 
mitigation,  and  for  any  thing  we  know  the  jury  might  say.  "we  will 
make  no  difference  between  the  minister  who  executed,  and  the  magis- 
trate who  granted  this  illegal  warrant;"    so  the  court  must  consider 


'^,ti^-^ 


^ 


60  DISCRETIONARY  DAMAGES.  (Part   4 

these  damages  as  given  against  Lord  Halifax,  and  can  we  say  that 
ilOOO.  are  monstrous  damages  as  against  him,  who  has  granted  an 
illegal  warrant  to  a  messenger  who  enters  into  a  man's  house,  and 
prys  into  all  his  secret  and  private  affairs,  and  carries  him  from  his 
house  and  business,  and  imprisons  him  for  six  days ;  it  is  an  unlawful 
power  assumed  by  a  great  minister  of  state;  can  any  body  say  that  a 
guinea  per  diem  is  sufficient  damages  in  this  extraordinary  case,  which 
concerns  the  liberty  of  every  one  of  the  King's  subjects;  we  cannot 
say  the  damages  of  £1000.  are  enormous,  and  therefore  the  rule  to 
shew  cause  why  a  new  trial  should  not  be  granted  must  be  discharged. 
Per  totam  curiam. 


RUSSELL  V.  PALMER. 

(Court  of  Common  Fleas,   17U7.     2  Wils.  325.) 

Special  action  on  the  case  against  an  attorney  for  negligence  in 
failing  to  issue  execution  upon  a  judgment  until  the  debtor  and  his  bail 
were  discharged. 

Curia.  This  cause  was  first  tried  before  Lord  Camden  about  half 
a  year  ago,  when  a  verdict  was  given  for  the  plaintiff  for  £3000.  the 
whole  debt,  by  my  Lord's  direction ;  but  afterwards  a  new  trial  was 
granted,  my  Lord  and  the  court  being  of  opinion  that  he  had  misdi- 
rected the  jury  in  telling  them  they  ought  to  find  a  verdict  for  the 
whole  debt,  whereas  this  action  sounds  merely  in  damages,  and  the 
jury  ought  to  have  been  left  at  liberty  to  find  what  damages  they 
thought  fit;  and  upon  the  last  trial  the  jury  were  told  they  might 
find  what  damages  they  pleased,  and  accordingly  found  only  £500. 
as  it  appeared  to  them  in  evidence,  that  Stewart  was  not  totally  in- 
solvent. We  are  all  of  opinion  that  this  action  is  well  conceived,  and 
lies  against  Mr.  Palmer  for  negligence,  and  we  have  authority  to  say 
that  Lord  Camden  is  of  the  same  opinion.    Judgment  for  the  plaintiff. 


GILBERT  v.  BERKINSHAW. 

(Court  of  King's  Bench,  1774.     Loft.  771.) 

Lord  Mansfield.  This  rule  to  shew  cause  why  there  should  not 
be  a  new  trial,  comes  before  the  court  singly  on  the  judge's  report. 

Not  on  the  ground  of  surprise,  material  evidence  since  discovered,  or 
mistake  in  the  jury. 

Verdict  taken  upon  two  counts,  one  of  which  is,  for  saying  of  the 
plaintiff,  "He  is  a  scoundrel,  and  I  will  prove  it;"  the  other  count  al- 
so charges  words  of  defamation. 

The  only  ground  is  of  excessive  damages:  And  though  I  would  be 
very  sorry  to  lay  down  a  rule  that  no  new  trial  would  ever  be  grant- 


Ch.  1)  IN   GENERAL.  61 

ed  on  account  of  excessive  damages,  where  they  might  be  so  enormous 
that  it  would  appear  their  minds  must  have  been  unjustly  and  unrea- 
sonably heated,  or  otherwise  under  a  corrupt  influence,  or  have  taken 
in  something  by  mistake  to  the  damages  which  by  law  they  could  not ; 
yet  I  do  not  think  it  fit  that  this  court  shall  say,  in  a  matter  of  uncer- 
tain damages,  there  shall  be  a  new  trial,  because  if  the  court  had  been 
to  fix  the  damages  they  might  have  given  less,  or  a  jury  might  have 
given  less. 

The  court  will  not  judge  by  a  measuring  cast,  where  matters,  prop- 
erly for  all  parties,  have  been  left  to  the  sound  discretion  of  a  jury,  in 
a  subject  of  which  they  are  competent  and  proper  judges. 

It  is  enough  that  it  may  be  supported  upon  the  general  circum- 
stances (and  there  are  no  special  damages  assigned),  the  nature  of  the 
injury,  the  feeling  which  the  plaintiff  may  have  of  it,  the  degree  of 
evidence  of  malice,  are  all  circumstances  properly  left  to  a  jury. 

I  remember,  since  I  sat  there,  an  action  by  a  very  poor  man,  for  a'^-»'^-i^- 
charge  of  criminal  conversation  with  the  plaintiff's  wife.    On  a  motion  '  • 
for  a  new  trial,  on  account  of  excessive  damages,  new  trial  was  re- 
fused.   And  so  in  the  case  of  a  very  poor  servant  of  Sir 's,  who 

had  received  from  his  master  150  lashes,  and  there  was  evidence  that 
he  had  said  that  for  a  very  trifling  sum  he  would  receive  them  again. 
The  jury  found  the  plaintiff  ilOO.  damages.  They  resented  the  be- 
haviour of  his  master;  they  exercised  their  judgment  accordingly; 
and  the  court  would  not  grant  a  new  trial. 

This  is  not  the  case  of  the  greyhound,  of  the  value  of  which  the 
court  could  form  an  estimate,  and  say  they  have  found  forty  times  too 
much.    And  it  was  upon  evidence,  and  the  judge  not  dissatisfied.* 


PRICE  V.  SEVERN.    ^-^^-^^^^"^ 

(Court  of  Common  Pleas,  1831.    7  Bing.  316.)     u,^x.  f- 

This  action  was  brought  to  recover  compensation  in  damages  for  an 
assault  and  false  imprisonment ;  the  defendant  pleaded  not  guilty ;  and 
the  cause  was  tried  before  Gaselee,  J.,  at  the  last  Northampton  assizes. 
It  appeared  that  the  plaintiff,  a  man  in  low  circumstances,  claimed  re- 
lationship with  the  wife  of  the  defendant,  who  had  been  recently  high 
sheriff  for  the  county  of  Northampton.  The  plaintiff  went  down  from 
London  to  Northamptonshire,  and  applied  at  the  defendant's  house  for 
pecuniary  assistance.  Becoming  unreasonable  in  his  demands,  he  was 
warned  off  the  premises.  He  still,  however,  continued  his  importuni- 
ties, and  having  refused  to  quit  the  premises,  the  defendant  directed  a 
constable  to  take  him  into  custody.  This  order  the  constable  obeyed, 
and  the  plaintiff  was  taken  to  an  inn  for  the  night.  On  the  following 
morning  he  was  again  brought  to  the  defendant,  and  after  some  little 

2  Only  the  opinion  of  Ix)rd  Mansfield  is  published  herein. 


62  DISCRETIONARY   DAMAGES.  (Part   4 

conversation,  said  he  must  have  some  money.  The  defendant  said  he 
would  ask  Mrs.  Severn  about  that — went  away,  and  returned  in  a  few 
minutes  with  two  sovereigns,  which  he  told  the  plaintiff  he  might  take 
or  go  before  a  justice :  the  plaintiff  consented  'to  take  the  money,  but 
said,  at  the  same  time,  that  he  must  have  something  for  the  keep  of  his 
horse.  The  defendant  then  gave  him  half  a  crown,  and  directed  the 
butler  to  furnish  some  refreshment.  The  butler  did  so,  in  the  house- 
keeper's room,  and  the  plaintiff  went  away.  When  he  was  first  taken 
into  custody  the  constable  put  handcuffs  on  him,  but  immediately  aft- 
erwards removed  them;  and  there  was  no  evidence  to  show  that  they 
had  been  put  on  by  the  defendant's  order.  Gaselee,  J.,  in  summing 
up  the  evidence,  told  the  jury,  that  as  the  defendant  had  not  pleaded 
accord  and  satisfaction,  the  evidence  as  to  the  money  given  to  the 
plaintiff,  and  accepted  by  him,  must  be  taken  as  going  only  in  reduc- 
tion of  damages,  and  the  verdict  must  be  for  plaintiff;  but  it  would  be 
for  the  jury  to  say  how  much  more  he  was  entitled  to  upon  the  evi- 
dence they  had  heard.  The  jury  returned  a  verdict  for  ilOO.  The 
learned  judge,  on  reading  the  report,  stated,  that  a  verdict  for  a  shil- 
ling would  have  met  the  justice  of  the  case. 

TiNDAiv,  C.  J.  I  think  this  case  ought  to  be  submitted  to  another 
jury.  I  offer  no  comment  on  the  cases  which  have  been  cited,  and 
would  detract  nothing  from  their  authority.  I  am  as  little  disposed  as 
any  man  to  interfere  with  the  province  of  a  jury,  and  I  should  not  be 
induced  to  send  a  case  down  again  for  excessive  damages  except  where 
those  damages  are  enormous  and  disproportionate.  I  consider  them 
such  in  this  case  on  account  of  the  limit  which  the  plaintiff*  himself  put 
on  his  demand  in  the  first  instance.  On  the  morning  after  the  deten- 
tion, he  seems  to  have  thought  himself  well  off  with  the  two  sovereigns 
and  half  crown  which  the  defendant  gave  him;  and  there  is  nothing 
like  duress  in  the  case;  for  after  he  had  received  the  sovereigns  he 
stipulated  for  a  further  sum  to  defray  the  expense  of  his  horse,  and 
having  received  it,  went  to  the  defendant's  housekeeper's  room,  where 
he  was  supplied  with  refreshment.  It  seems  to  me,  that  if  accord  and 
satisfaction  had  been  pleaded,  it  would  have  been  a  bar  to  the  action. 
A  verdict  for  ilOO.,  as  we  cannot  but  see  on  the  evidence  of  the  plain- 
tiff himself,  is  far  beyond  what  he  merits.  The  case,  therefore,  must 
go  before  another  jury. 

Park,  J.  I  am  surprised  that  it  should  have  been  supposed  the  court 
has  any  wish  to  interfere  with  the  due  province  of  the  jury.  I  agree 
with  all  the  cases  which  have  been  cited,  and  the  principle  laid  down  by 
Mr.  Justice  Yates  in  Bruce  v.  Rawlins,  3  Wils.  61,  that  "the  case  must 
be  very  gross,  and  the  damages  enormous,  for  the  courts  to  interpose." 
In  Duberley  v.  Gunning,  4  T.  R.  651,  the  jury  thought  that  the  plain- 
tiff had  not  connived  at  the  dishonour  of  his  wife,  and  therefore  in- 
creased the  damages  on  account  of  the  foul  and  slanderous  defence. 
The  court  is  attempting  nothing  in  this  case  which  is  not  usual,  and  the 
only  question  is,  whether  these  damages  are  excessive  and  enormous? 


Ch.  1)  IN   GENERAL.  63 

I  am  clearly  of  opinion  they  are,  on  the  plaintiff's  own  showing,  and 
we  are  not  doing  away  with  juries  by  ordering  a  new  trial,  but  only 
sending  the  case  to  another  jury.  There  can  be  no  question  that  the 
degree  of  insult  may  vary  according  to  the  station  in  life  of  the  party. 
That  was  held  in  the  case  of  striking  off  the  hat ;  an  act,  which  in  one 
station  might  be  no  more  than  a  frolic,  in  another,  an  insult  calling 
for  damages.* 


WESTON,  J.,  IN  MILLER  v.  TRUSTEES  OF  MARINER'S 

CHURCH. 
(Supreme  Judicial  Court  of  Maine,  1830.     7  Me.  51,  'JO  Am.  Dec.  341.) 

By  the  common  law,  the  estimation  of  damages  is  within  the  province 
of  the  jury.  Courts  may,  and  often  do,  in  cases  of  manifest  excess, 
interfere  by  granting  a  new  trial.  Where  the  injury  affects  the  per- 
sonal feelings,  this  is  rarely  done.  And  in  cases  of  fraud  or  wanton 
trespass,  considerable  latitude  has  been  allowed.  But  where  there  ex- 
ists a  fixed  standard  or  scale,  by  which  damages  may  be  calculated, 
a  jury  will  not  be  permitted  to  depart  from  it.  Thus  assumpsit,  in- 
stead of  debt,  is  now  the  remedy  universally  resorted  to,  upon  simple 
contracts  for  the  payment  of  money.  By  the  form  of  the  action,  dam- 
ages are  sought  for  the  nonperformance;  but  the  measure  of  dam- 
ages is  the  debt  due  with  interest  for  the  detention,  for  a  longer  or 
shorter  period,  according  to  circumstances.  In  other  cases,  arising 
from  the  nonperformance  of  agreements,  the  standard  is  less  definite, 
and  necessarily  attended  with  greater  uncertainty.  In  general,  the 
delinquent  party  is  holden  to  make  good  the  loss  occasioned  by  his 
delinquency.  But  his  liability  is  limited  to  direct  damages,  which,  ac- 
cording to  the  nature  of  the  subject,  may  be  contemplated  or  presumed 
to  result  from  his  failure.  Remote  or  speculative  damages,  although 
susceptible  of  proof  and  deducible  from  the  nonperformance,  are  not 
allowed. 

4  The  concurring  opinion  of  Alderson,  J.,  is  omitted.  Bosanquet,  J.,  also 
concurred. 

In  Lockley  v.  Pye,  8  Mees.  &  W.  133  (1841),  Alderson.  B..  said:  "It  was  en- 
tirely a  question  for  the  jury  what  damages  they  would  allow.  Juries  have 
not  much  compassion  for  trespassers,  and  I  do  not  think  they  are  hound  to 
weiiih  in  golden  scales  how  much  injury  a  party  has  sustained  hy  a  trespass." 

See  also.  Sharp  v.  Brice,  2  W.  Bl.  942  (1774) ;  Hawkins  v.  Sciet.  Palm.  314  ; 
Ash  V.  Lady  Ash,  Comb.  357  ;  Delves  v.  Wyer,  1  Brown.  &  G.  204 ;  Barker 
V  Dixie  2  Str.  1051  (173<));  Wilhams  v.  Currie.  1  Man.  G.  &  S.  841  (1845);  Du- 
berley  v.  Gunning,  4  Term  R.  G51  (1792) :  Elliot  v.  Allen,  1  Man.-  G.  &  S.  18 
(1845) ;  Redshaw  v.  Brooks,  2  "Wils.  405  (1TG9). 


64  DISCRETIONARY  DAMAGES.  (Part   4 

HAMLIN  V.  GREAT  NORTHERN  RY.  CO. 

(Court  of  Exchequer,  1856.     1  Hurl.  &  N.  408.) 

The  plaintiff  was  a  master  tailor  going  to  Yorkshire  to  see  his  cus- 
tomers, having  previously  made  arrangements  to  meet  them  at  particu- 
lar times  and  places.  On  the  25th  of  October,  1855,  he  took  a  ticket 
for  Hull  by  the  two  o'clock  train  from  King's  Cross,  which  was  adver- 
tised to  arrive  at  Hull  at  half-past  nine  o'clock.  On  reaching  Great 
Grimsby  he  found  that  there  was  no  train  to  take  him  on  to  Hull.  It 
appeared  that  the  ferry-boats  from  New  Holland  to  Hull  only  run  in 
connexion  with  the  trains.  The  plaintiff  stated  that  there  was  no  pos- 
sibility of  his  getting  to  Hull  that  night,  and  that  he  therefore  remained 
at  Great  Grimsby,  and  paid  2^^.  for  his  bed  and  some  refreshment.  In 
the  morning  he  presented  his  ticket  for  Hull,  but  the  company  refused 
to  recognize  it,  and  he  paid  1.?.  4rf.  as  the  fare  from  Great  Grimsby  to 
Hull.  He  arrived  at  Hull  at  half-past  eight  o'clock  on  Friday,  the  2Gth, 
and  being  too  late  for  the  seven  o'clock  train  from  Hull  to  Driffield, 
was  unable  to  keep  his  appointments  at  Driffield  and  other  places,  which 
were  generally  on  the  market  days.  He  stated  that  he  incurred  con- 
siderable expense,  and  lost  much  time,  in  going  to  the  houses  of  his 
customers,  having  been  eight  days  longer  on  his  journey  than  he 
would  have  been  if  he  had  been  able  to  have  kept  his  appointments. 

The  learned  judge  directed  the  jury  that  the  defendants  had  broken 
the  contract,  and  that  the  plaintiff  was  entitled  to  recover  for  the  direct 
consequences  of  that  breach  of  contract ;  that  he  would  have  been  en- 
titled to  charge  the  company  with  the  expenses  of  getting  to  Hull,  but 
that  he  had  no  right  to  cast  upon  the  company  the  remote  consequences 
of  remaining  the  night  at  Grimsby ;  that,  not  having  communicated  to 
the  company  his  intention  of  proceeding  from  Hull  to  Driffield,  he 
could  not  recover  damages  for  having  been  prevented  from  doing  so; 
that  he  was  entitled  to  the  fare  paid  from  Great  Grimsby,  and  per- 
haps, the  2s.  for  his  bed  and  refreshment.  He  ruled  that  the  damages 
ought  not  to  exceed  5s.    Verdict  for  the  plaintiff,  with  5s.  damages.^ 

Pollock,  C.  B.  We  are  all  of  opinion  that  the  rule  must  be  refused. 
The  action  is  brought  to  recover  damages  for  a  breach  of  contract. 
A  contract  to  marry  has  always  been  considered  an  exceptional  case, 
in  which  the  injury  to  the  feelings  of  the  party  may  be  taken  into  con- 
sideration. So  in  the  case  of  wrongs  not  founded  on  contract,  the 
damages  are  entirely  a  question  for  the  jury,  who  may  consider  the 
injury  to  the  feelings,  and  many  other  matters  which  have  no  place  in 
questions  of  contract.  In  actions  for  breaches  of  contract  the  dam- 
ages must  be  such  as  are  capable  of  being  appreciated  or  estimated. 
Mr.  Wilde  was  invited  at  the  trial  to  state  what  were  the  damages  to 
which  the  plaintiff  was  entitled.     He  said,  general   damages.     The 

6  Part  of  the  statement  of  facts  is  omitted. 


Ch.  1)  ''^^^A^  IN  GENERAL.  65 

plaintiff  is  entitled  to  nominal  damages,  at  all  events,  and  such  other 
damages  of  a  pecuniary  kind  as  he  may  have  really  sustained  as  a  di- 
rect consequence  of  the  breach  of  contract.  Each  case  of  this  descrip- 
tion must  be  decided  with  reference  to  the  circumstances  peculiar  to 
it ;  but  it  may  be  laid  down  as  a  rule,  that  generally  in  actions  upon 
contracts  no  damages  can  be  given  which  cannot  be  stated  specifically, 
and  that  the  plaintiff  is  entitled  to  recover  whatever  damages  naturally 
result  from  the  breach  of  contract,  but  not  damages  for  the  disappoint- 
ment of  mind  occasioned  by  the  breach  of  contract. 


RANSOM  V.  NEW  YORK  &  E.  R.  CO. 

(Court  of  Appeals  of  New  York,  1857.     15  N.  Y.  415.) 

Action  for  personal  injuries.  Plaintiff  was  allowed  to  recover  for 
necessary  expenses  for  nursing  and  medical  aid,  for  pain  and  suffering, 
present  and  prospective,  and  for  deprivation  for  the  use  of  his  limbs 
as  a  result  of  the  injury.    A  verdict  for  $14,000  was  returned. 

BowEN,  J.®  In  actions  of  tort,  or  for  injuries  either  to  the  person 
or  property,  damages  are  awarded  as  a  compensation  or  satisfaction 
for  the  injury  sustained;  and  in  most  of  these  actions  the  compensation 
or  satisfaction  is  given  in  money,  for  the  reason  that  the  law  has  pro- 
vided no  other  means  of  redress.  In  some  cases  a  full  and  complete 
compensation  and  satisfaction  is  thus  obtained,  as  in  an  action  for  the 
conversion  of  a  chattel  bearing  a  market  value ;  the  value  of  the  chat- 
tel with  the  value  of  its  use  until  satisfaction  is  obtained,  and  the  costs 
and  expenses  of  the  litigation,  will  afford  a  perfect  indemnity  to  the 
party  deprived  of  his  property.  So,  too,  in  an  action  for  an  injury  to 
such  a  chattel,  pecuniary  damages  will  afford  full  compensation  to 
the  owner  and  the  amount  which  he  ought  to  receive  can  be  ascertained 
with  a  good  degree  of  certainty. 

But  in  most  if  not  all  actions  for  injuries  to  the  person  or  to  char- 
acter, pecuniary  damages  will  not  afford  a  complete,  or  at  least  a 
specific  compensation,  for  the  reason  that,  by  the  use  of  money,  the 
party  injured  cannot  be  restored  to  the  condition,  situation  or  standing 
he  was  in  prior  to  the  commission  of  the  wrongful  act  producing  the 
injury.  It  is  true  that  where  a  party,  by  an  injury  to  his  person,  is  so 
disabled  as  to  be  incapable  of  pursuing  his  ordinary  avocations,  and  to 
require  medical  attendance  and  nursing,  pecuniary  damages  may  com- 
pensate him  for  his  loss  of  time  and  for  the  expenses  incurred ;  but  it 
cannot  be  contended  for  a  moment  that  indemnity  for  the  loss  of  time 
and  expenses  incurred  will  constitute  a  satisfaction  for  the  whole  in- 

«  The  opinion  of  Denlo,  C.  J.,  and  part  of  tbe  opinion  of  Bowen,  J.,  are 
omitted,  and  the  statement  of  facts  Is  rewritten. 
Gii.b.Dam. — 5 


66  DISCRETIONARY   DAMAGES.  (Part   4 

jury,  nor  can  any  authority  be  found  holding  that  the  law  will  furnish 
no  redress  beyond  such  indemnity.  Bodily  pain  and  suffering,  more  or 
less  acute  and  intense,  and  more  or  less  protracted,  invariably  result 
from  and  are  directly  and  immediately  caused  by  an  injury  to  the  per- 
son, and  in  many  cases  they  are  by  far  the  least  desirable  consequences 
of  the  injury;  and  if  the  law  affords  no  redress  therefor,  it  falls  short 
of  giving  compensation  for  injuries  to  a  greater  extent  that  I  had  sup- 
posed. That  pain  or  suffering  is  a  real  and  substantive  injury  cannot 
be  disputed.  It  is  true,  as  claimed  by  the  defendant's  counsel,  that  it  is 
impossible  to  communicate  its  extent  or  intensity  to  a  court  or  jury  to 
any  degree  of  certainty  or  accuracy;  and  if  that  could  be  definitely 
and  precisely  ascertained,  the  compensation  or  satisfaction  therefor 
cannot,  in  the  very  nature  of  things,  be  measured  by  dollars  and  cents. 
But  the  same  difficulty  in  measuring  the  damages  occurs  in  many  other 
cases.  In  an  action  for  carelessly  destroying  an  ornamental  tree,  the 
growth  of  years,  and  standing  contiguous  to  a  dwelling,  compensa- 
tion to  the  owner  cannot  be  measured  by  pecuniary  damages,  as  the 
tree  cannot  be  said  to  have  any  pecuniary  value;  and  yet,  pecuniary 
damages  are  awarded  to  him  as  a  compensation  for  the  injury.  So, 
too,  in  an  action  for  creating  or  continuing  a  nuisance  contiguous  to 
the  plaintiff's  dwelling,  but  not  on  his  premises,  where  the  only  damages 
resulting  are  odors  disagreeable  and  offensive,  but  not  injurious  to 
health,  pecuniary  damages  will  be  awarded,  although  it  cannot  for  a 
moment  be  contended  that  dollars  and  cents  constitute  any  measure 
of  the  damages. 

The  same  is  the  case  in  actions  for  libel,  verbal  slander,  seduction 
and  crim.  con. 

In  actions  of  the  above  description,  where  the  wrongful  act  produc- 
ing the  injury  is  prompted  by  malice,  it  has  been  often  held  that  the 
jury  may,  in  awarding  damages,  go  beyond  a  compensation  for  the  in- 
jury resulting,  by  adding  thereto  an  amount  as  a  punishment  to  the 
offender  and  an  example  to  others ;  but  the  amount  which  should  thus 
be  added  must  always  be  equally  as  arbitrary  and  as  incapable  of  being 
measured  by  dollars  and  cents  as  the  amount  to  be  given  to  the  injured 
party  for  the  pain  and  suffering  endured  by  him,  resulting  directly 
from  the  wrongful  act;  and  the  same  rule  by  which  it  is  sought  to 
exclude  the  one  would  also  exclude  the  other. 

In  all  actions  of  this  description,  the  amount  of  damages  to  be  award- 
ed as  a  compensation  must  always  be  submitted  to  the  good  sense  of 
the  jury,  under  proper  instructions  depending  upon  the  circumstances 
of  each  particular  case. 

The  argument  of  the  defendant's  counsel  would  result  in  this,  that 
no  damages,  as  compensation  or  satisfaction,  can  be  awarded,  except 
for  the  pecuniary  loss  resulting  from  a  wrongful  act,  that  is,  for  such 
loss  as  money  or  the  use  of  money  can  restore,  or  such  loss  as  can  be 
computed  or  measured  by  dollars  and  cents.  If  such  be  the  rule,  our 
law  affords  but  a  very  inadequate  remedy  for  injuries  sustained;  and, 


Ch.  1)  IN   GENERAL.  Gl 

if  I  am  not  very  much  mistaken,  the  practice  of  the  courts,  both  of 

this  country  and  England,  has  been  in  direct  opposition  to  tlie  rule. 
*     *     * 

Judgment  affirmed. 


*3 


BALTIMORE  &  O.  R.  CO.  v.  CARR. 

(Court  of  Appeals  of  Maryland,  ]SS!).     71  Md.  133,  17  Atl.  in.-.L'.) 

Alvey,  C.  ].''  This  is  an  action  on  the  case,  brought  by  the  appel- 
lee against  the  appellant  for  the  wrongful  refusal  of  admission  of  the 
former  to  the  cars  of  the  latter.     *     *     *  - 

We  think  there  was  error  in  the  second  instruction  of  the  court,  in 
respect  to  the  question  of  damages.     The  jury  were  instructed  that,    , 
if  they  found  for  the  plaintiff  for  the  refusal  to  pass  him  through  the  "^^  _    . 
gate,  then  he  was  entitled  to  such  damages  as  they  might  find  would,  ^    '  ' 
under  all  the  circumstances,  compensate  him  for  such  refusal.     This_^<'    , 
left  the  whole  question  of  damages  at  large,  without  definition  by  the  /^_^ 

court,  to  the  discretion  of  the  jun,%  and  without  any  criterion  to  guide 
them.  What  compensation  would  embrace — whether  actual  and  nec- 
essary expenses  incurred  by  reason  of  the  refusal,  or  the  mere  delay, 
or  disappointment  in  pleasure,  or  the  possible  loss  in  business  transac-" 
tions,  however  remote  or  indirect,  or  for  wounded  feelings — were  mat- 
ters thrown  open  to  the  jury,  and  they  were  allowed  to  speculate  upon 
them  without  restraint.  This  is  not  justified  by  any  well-established 
rules  of  law.  In  the  case  of  Knight  v.  Egerton,  7  Exch.  407,  where, 
in  effect,  such  an  instruction  was  given,  the  court  of  exchequer  held 
it  to  be  wholly  insufficient,  "and  that  it  was  the  duty  of  the  judge  to 
inform  the  jury  what  was  the  true  measure  of  damages  on  the  issue, 
whether  the  point  was  taken  or  not;"  and  the  court  directed  a  new 
trial  because  of  the  indefinite  instruction  as  to  the  true  measure  of 
damages.  The  rule  by  which  damages  are  to  be  estimated  is,  as  a 
general  principle,  a  question  of  law  to  be  decided  by  the  court;  that 
is  to  say,  the  court  must  decide  and  instruct  the  jury  in  respect  to  what 
elements,  and  within  what  limits,  damages  may  be  estimated  in  the 
particular  action.  Harker  v.  Dement,  9  Gill,  7,  52  Am.  Dec.  670; 
Hadley  v.  Baxendale,  9  Exch.  341,  354.  The  simple  question  whether 
damages  have  been  sustained  by  the  breach  of  duty  or  the  violation  of 
right,  and  the  extent  of  damages  sustained  as  the  direct  consequences 
of  such  breach  of  duty  or  violation  of  right,  are  matters  within  the 
province  of  the  jury.  But  beyond  this,  juries,  as  a  general  rule,  are  not 
allowed  to  intrude,  as  by  such  intrusion  all  certainty  and  fixedness  of 
legal  rule  would  be  overthrown  and  destroyed.  In  a  case  like  the  pres- 
ent the  rule  for  measuring  the  damages  is  fixed  and  determinate,  and 
should  be  applied  to  all  cases  alike,  except  in  those  cases  where  there 

t  Part  of  the  opinion  is  omitted. 


68  DISCRETIONARY  DAMAGES.  (Part   4 

may  be  malice  or  circumstances  of  aggravation  in  the  wrong  complain- 
ed of,  for  which  the  damages  may  be  enhanced.  Indeed,  it  is  of  the 
utmost  importance  that  juries  should  be  explicitly  instructed  as  to  the 
rules  by  which  they  are  to  be  governed  in  estimating  damages ;  for,  as 
it  was  justly  observed  by  the  court  in  Hadley  v.  Baxendale,  supra, 
'\jf  the  jury  are  left  without  definite  rule  to  guide  them,  it  will,  in  most 
cases,  manifestly  lead  to  the  greatest  injustice.V  In  cases  of  this  char- 
acter the  jury  can  only  give  such  damages  as  were  the  immediate  con- 
sequences naturally  resulting  from  the  act  complained  of,  with  the 
right  to  allow  exemplary  damages  for  any  malice,  or  the  use  of  unnec- 
essary force,  in  the  commission  of  the  wrong  alleged.  Railroad  Co.  v. 
Blocher,  supra.  The  expenses  incurred  by  the  plaintiff,  occasioned 
by  the  refusal  of  the  defendant  to  admit  him  to  the  train,  such  as  the 
expense  of  a  ticket  to  travel  upon  another  train,  and  hotel  expenses  in- 
curred by  reason  of  the  delay,  may  be  allowed  for;  and  mere  incon- 
venience may  be  ground  for  damage,  if  it  is  such  as  is  capable  of  being 
stated  in  a  tangible  form,  and  assessed  at  a  money  value ;  and  so  for 
any  actual  loss  sustained  in  matters  of  business  that  can  be  shown  to 
have  been  occasioned  as  the  direct  and  necessary  consequence  of  the 
wrongful  act  of  the  defendant  made  the  ground  of  action.     *     *     * 


WELCH  V.  WARE. 

(Supreme  Court  of  Michigan,  1S75.    32  IMich.  77.) 

Campbell,  j,8  *  *  *  fjig  juj-y  found  in  this  case,  by  giving 
any  verdict  at  all  for  Ware,  that  he  had  been  assaulted  willfully  and 
without  justification.  He  was  therefore  entitled  beyond  controversy 
to  all  of  his  actual  damages.  He  was  evidently  allowed  here  an  amount 
exceeding  his  pecuniary  losses.  But  it  is  claimed  that  a  plaintiff  can 
recover  no  more  than  his  actual  damages,  and  that  these  cannot  be 
mcreased  or  aggravated  by  the  vindictive  feelings  or  the  degree  of 
malice  of  the  assailant,  from  which  it  is  claimed  no  additional  harm 
can  come  to  the  party  injured.  And  it  is  urged  that  vindictive  or 
exemplary  damages  are  improper. 

The  common  sense  of  mankind  has  never  failed  to  see  that  the  in- 
jury done  by  a  willful  wrong  to  person  or  reputation,  and  in  some 
cases  to  property,  cannot  be  measured  by  'the  consequent  loss  in  money. 
A  person  assaulted  may  not  be  disabled  or  even  disturbed  in  his  busi- 
ness, and  may  not  be  put  to  any  outlay  in  repairs  or  medical  services. 
He  may  not  be  made  poorer  in  money,  directly  or  consequently.  He 
may  incur  no  pecuniary  damage  whatever.  And  it  is  very  clear 
that  the  shame  and  mental  anxiety  and  suffering  or  indignation  conse- 
quent on  such  a  wrong  are  not  capable  of  a  money  measurement.  No 
one  would  avow  in  advance  that  he  would  be  willing  for  a  given  sum 

8  Part  of  the  opinion  is  omitted. 


Ch.  1)  IN   GENERAL. 


69 


to  meet  that  experience;  and  no  one  who  should  seek  it  as  a  means 
of  putting  money  into  his  pocket  would  be  likely  to  receive  compensa- 
tion at  the  hands  of  a  jury. 

So  a  person  who  is  struck  down  by  a  blow  from  the  arms  of  a  wind- 
mill may  be  much  more  seriously  hurt  than  by  a  blow  from  a  fist  or 
whip.  But  no  one  would  dream  of  comparing  these  injuries  by  their 
physical  effects. 

When  the  law  gives  an  action  for  willful  wrongs,  it  does  it  on  the 
ground  that  the  injured  person  ought  to  receive  pecuniary  amends  from 
the  wrong-doer.  It  assumes  that  every  such  wrong  brings  damage 
upon  the  sufferer,  and  that  the  principal  damage  is  mental,  and  not 
physical.  And  it  assumes  further  that  this  is  actual,  and  not  meta- 
physical damage,  and  deserves  compensation.  When  this  is  once 
recognized,  it  is  just  as  clear  that  the  willfulness  and  wickedness  of 
the  act  must  constitute  an  important  element  in  the  computation,  for 
the  plain  reason  that  we  all  feel  our  indignation  excited  in  direct  pro- 
portion with  the  malice  of  the  offender,  and  that  the  wrong  is  aggra- 
vated by  it. 

If  actual  damage  is  not  confined  to  pecuniary  consequences,  and  can- 
not be  measured  by  a  money  standard,  all  redress  in  damages  must 
partake  of  a  punitory  character  to  some  extent,  and  the  line  between 
actual  and  what  are  called  exemplary  damages  cannot  be  drawn  with 
much  nicety.  In  every  such  case  the  jury  are  compelled  to  deter- 
mine from  their  own  sense  of  justice,  and  their  knowledge  of  human 
nature,  what  the  amount  of  damages  should  be.  When  the  amount 
to  be  recovered  must  in  all  cases  rest  in  their  fair  and  deliberate  discre- 
tion, the  law  can  give  them  no  precise  instructions.  It  aims  to  do 
justice  by  directing  them  to  distinguish  between  provoked  grievances 
and  those  which  are  unprovoked,  or  for  which  the  provocation  is  in 
great  disproportion  to  the  wrong,  making  adequate  compensation  in  all 
cases,  but  giving  heavier  damages  in  all  cases  where  the  wrong  is  ag- 
gravated by  bad  motives  or  malice.  It  would  be  of  very  little  use  to 
present  the  law  to  a  jury  upon  any  theoretical  basis.  The  rule  is  in- 
telligible and  has  not  been  found  to  work  badly  in  practice.  But  wheth- 
er this  rule  involves  merely  compensation,  or  whether  it  is  based  on  a 
theory  of  punishment,  is  not  very  important  in  practice,  and  does  not 
come  within  the  domain  of  law,  so  long  as  the  jury  are  obliged  to  es- 
timate by  their  own  good  judgment.     *     *     * 

In  cases  like  this,  where  all  the  surroundings  are  before  the  jur\% 
and  where  the  damages  are  so  largely  discretionary,  it  would  be  utterly 
impossible  to  fix  any  very  precise  rules  to  guide  the  jury.  Beyond 
such  cautions  as  may  guard  them  from  allowing  scope  to  prejudice 
and  passion,  any  specific  rules  would  hardly  be  rules  of  law,  in  most 
cases,  and  experience  has  shown  they  have  so  little  effect  on  juries 
that  it  is  questionable  whether  they  understand  them.  There  are  no 
cases  in  which  more  respect  is  paid  to  the  general  sense  of  jurors,  as 
representing  what  may  be  regarded  as  the  common  sense  of  ordinary 


70  DISCRETIONARY  DAMAGES.  (Part   4 

men  on  similar  facts, — and  the  law  has  been  allowed  to  rest  on  this 
discretion  as  quite  as  likely  to  do  justice  as  any  other  standard.  It 
is  sometimes  abused,  but  its  average  working  is  not  unjust.  Arbi- 
trary rules  could  hardly  fail  to  be  mischievous.     *     *     *  • 


RETAN  V.  LAKE  SHORE  &  M.  S.  RY.  CO. 

(Supreme  Court  of  Michigan,  lSt>2.     94  Mich.  146,  53  N.  W.  1094.) 

The  plaintiff  was  a  young  boy  and  was  run  over  by  a  train  of  the 
defendant  company.  His  left  foot  was  cut  off  above  the  ankle  and 
his  right  foot  was  crushed.  Both  were  subsequently  amputated.  The 
jury  returned  a  verdict  for  $30,000. 

Long,  J.^"  *  *  *  It  is  claimed  that  the  amount  of  damages  is 
excessive.  Not  having  found  any  error  in  the  proceedings,  or  any- 
thing improper  upon  the  trial  tending  to  prejudice  the  defendant's 
rights  or  inflame  the  jury,  and  thereby  prejudice  them  against  the  de- 
fendant, we  cannot  disturb  the  verdict  on  the  ground  solely  that  it  is 
greater  in  amount  than  we  think  should  have  been  given.  Hunn  v. 
Railroad  Co.,  78  Mich.  529,  44  N.  W.  502,  7  L.  R.  A.  500;  Rich- 
mond v.  Railway  Co.,  87  Mich.  392,  49  N.  W.  621 ;  Stuyvesant  v. 
Wilcox,  92  Mich.  233,  52  N.  W.  467,  31  Am.  St.  Rep.  580.  I  am  not 
prepared  to  say,  however,  that  cases  might  not  arise  where,  even  under 
our  former  rulings,  we  would  not  be  justified  in  considering  that  ques- 
tion. If  the  verdict  was  such  as  to  shock  the  common  sense  and  judg- 
ment of  mankind,  it  might  call  for  a  different  rule,  and  the  court  might 
be  justified  in  overturning  it.  But  that  is  not  so  in  this  case.  The 
jury  have  taken  into  consideration  the  pain  and  suflfering  this  plain- 
tiff has  endured,  and  the  loss  to  him  for  the  remainder  of  his  years  of 
both  feet.  It  may  be  large,  but  the  jury  alone  had  the  right  to  deter- 
mine it.  The  judgment  must  be  affirmed,  with  costs.  The  other  jus- 
tices concurred. 

»  See  C,  K.  &  W.  R.  R.  Co.  v.  Drake,  46  Kan.  568.  26  Pac.  1039  (1891),  for 
a  full  discussion  of  the  province  of  the  jury  in  determining  value. 

Kinne,  J.,  in  Limburg  v.  German  Fire  Ins.  C5o.  of  Peoria,  90  Iowa,  709, 
57  N.  W.  626,  23  L.  R.  A.  99,  48  Am.  St.  Rep.  468  (1S94),  said:  "The  jury 
were  told  by  the  court  in  an  instruction  that  if  they  found  that  the  building 
was  not  totally  destroyed,  and  it  could  be  repaired  at  an  expense  of  $200  to 
$250,  then  plaintiff's  damages  would  be  limited  to  the  amount  it  would  have 
cost  to  repair  said  building,  and  put  the  same  in  as  good  condition  as  before 
the  fire  occurred,  with  6  per  cent,  interest  per  annum  thereon.  Under  the 
provisions  of  the  policy  this  instruction  was  proper,  and,  whether  it  was  so  or 
not,  the  jury  were  bound  to  follow  it.  The  undisputed  evidence  was  that  for 
$250  the  building  could  have  been  made  as  good  as  it  was  before  the  fire.  The 
jury  disregarded  the  court's  instruction,  and  found  for  plaintiff  for  the  full 
amount  of  the  policy,  with  interest.  The  court  should  have  set  the  verdict 
aside  for  the  reasons  given." 

10  Part  of  the  opinion  is  omitted,  and  the  statement  of  facts  is  rewritten. 


Ch.  1)  IN   GENEUAL.  71 

PETERSON  V.  WESTERN  UNION  TELEGRAPH  CO. 

(Supreme  Court  of  Minnesota,  189G.     G5  Minn,  18,  67  N.  W.  G40,  33 

L.  li.  A.  302.) 

Start,  C.  J.^^  This  is  an  action  for  libel,  in  which  the  plaintiff  re- 
covered a  verdict  for  $5,200,  and  the  defendant  appealed  from  an 
order  denying  its  motion  for  a  new  trial.  The  defendant  on  January 
19,  1893,  received  at  its  office  in  New  Ulm,  from  Albert  Blanchard.  a 
message  for  transmission  over  its  telegraph  line  to  St.  Paul,  which 
reads  "thus :  "New  Ulm,  Minn.,  1-19,  1893.  To  S.  D.  Peterson,  Care 
Windsor,  St.  Paul,  Minn.:  Slippery  Sam,  your  name  is  pants. 
[Signed]  Many  Republicans."  The  New  Ulm  operator  sent  the  mes- 
sage over  the  wires  to  St.  Paul,  where  it  was  taken  from  the  wire  by 
the  operator,  and  delivered  to  the  plaintiff  in  a  sealed  envelope  bearing 
his  address  as  stated  in  the  message.     *     *     * 

The  damages  in  this  case  are  so  excessive  as  to  conclusively  show 
that  the  verdict  was  the  result  of  passion  and  prejudice.  Courts 
should  interfere  with  an  assessment  of  damages  by  a  jury  with  great 
caution,  and  sustain  the  verdict  unless  it  appears  that  it  was  the  re- 
sult of  passion  or  prejudice.  But  the  verdict  in  this  case  admits  of  no 
defense.  As  correctly  stated  by  the  trial  court  in  its  instructions  to 
the  jury,  the  sole  publication  of  the  libel  in  this  case  by  the  defend- 
ant was  in  making  it  known  to  its  own  agent  at  St.  Paul,  and  the  dam- 
ages of  the  plaintiff  were  limited  to  such  as  he  sustained  by  reason  of 
the  publication  to  such  agent.  In  view  of  the  fact  that  such  agent 
could  not  disclose  the  contents  of  the  libel  without  becoming  a  criminal 
and  exposing  himself  to  serious  punishment,  and  that  there  is  no  evi- 
dence to  justify  the  inference  that  the  contents  of  the  message  ever 
reached  the  public,  except  through  the  plaintiff,  a  verdict  assessing  his 
damages  at  $5,200  is  simply  farcical.  It  can  only  be  accounted  for  on 
the  ground  that  it  was  the  result  of  passion  or  prejudice. 

Reversed.^^ 

11  Part  of  the  opinion  Is  omitted. 

12  See  the  same  case  asain  in  72  Minn.  41,  74  N.  W.  1022,  40  L.  R.  A.  6G1, 
71  Am.  St.  Rep.  461  (1S98). 

See,  similarly,  Praed  v.  Graham,  24  Q.  B.  Div.  53  (1SS9) ;  Shaw  v.  B.  &  W. 
R.  K..  8  Gray  (Mass.)  45  (1857) ;  Taylor  v.  Shelkett,  66  Ind.  297  (1879).  While 
it  is  usual  to  order  a  new  trial  when  a  verdict  is  set  aside  as  excessive,  in 
most  jurisdictions  the  practice  prevails  of  giving  the  plaintifif  the  option  he- 
tween  submitting  to  a  reduction  in  the  verdict  to  what  the  court  deems  rea- 
sonable and  a  new  tiMal.  This  is  termed  a  "remittitur."  See.  for  criticisms 
of  this  practice.  Goodno  v.  Oshkosh.  28  Wis.  300  (1871),  and  Loewenthal  v. 
Strenp,  90  111.  74  (1878).  A  remittitur  is  also  proper  when  a  verdict  is  re- 
turned for  a  larger  sum  than  that  laid  in  the  declaration.  David  v.  Conard, 
1  G.  Greene  (Iowa)  33G  (1848). 


72  DISCRETIONARY  DAMAGES.  (Part   4 

TATHWELL  v.  CITY  OF  CEDAR  RAPIDS. 

(Supreme  Court  of  Iowa,  1903.     122  Iowa,  50,  97  N.  W.  96.) 

Action  to  recover  damages  resulting  from  personal  injuries  received 
by  plaintiff  while  driving  in  a  street  of  defendant  city  by  reason  of  his 
horse  stepping  into  a  hole  in  the  highway  in  or  beside  a  culvert,  the 
result  being  that  plaintiff  was  thrown  to  the  ground.  Judgment  for 
plaintiff  on  a  former  trial  was  reversed,  and  a  new  trial  ordered.  114 
Iowa,  180,  86  N.  W.  291.  On  this  trial  verdict  was  returned  for  the 
plaintiff  for  $100  damages,  which  on  plaintiff's  motion,  was  set  aside 
as  inadequate.     From  this  ruling  defendant  appeals.     Affirmed. 

McClain,  J.^^  There  was  a  conflict  in  the  evidence  as  to  whether 
the  street  was  defective  at  the  place  where  plaintiff  was  injured,  but 
the  verdict  of  the  jury  for  the  plaintiff  establishes  the  existence  of  a 
defect  and  the  negligence  of  the  city  with  reference  thereto,  and  we 
have  for  consideration  only  this  question:  Did  the  trial  judge  err 
in  setting  aside  the  verdict  on  the  ground  that  the  damages  awarded 
to  plaintiff  for  the  injury  were  inadequate?  The  right  of  jury  trial,  as 
uniformly  recognized  under  the  common-law  system,  involves  the  de- 
termination by  the  jury,  rather  than  by  the  judge,  of  questions  of  fact, 
including  the  amount  of  damage  to  be  given  where  compensation  is 
for  an  unliquidated  demand.  Nevertheless,  the  trial  courts  have  ex- 
ercised from  early  times  in  the  history  of  the  common  law  the  power 
to  supervise  the  action  of  the  jury,  even  as  to  the  measure  of  damages, 
and  to  award  a  new  trial  where  the  verdict  is  not  supported  by  the  evi- 
dence and  is  manifestly  unjust  and  perverse.  And  while  it  is  uni- 
formly held  that  the  trial  judge  will  interfere  with  the  verdict  of  the 
jury  as  to  matters  of  fact  with  reluctance,  and  only  where,  on  the  very 
face  of  the  evidence,  allowing  every  presumption  in  favor  of  the  cor- 
rectness of  the  jury's  action,  it  is  apparent  to  a  reasonable  mind  that 
the  verdict  is  clearly  contrary  to  the  evidence,  yet  the  power  of  the 
judge  to  interfere  in  extreme  cases  is  unquestionable.  It  has  some- 
times been  said  that  the  judge  should  not  interfere  where  the  verdict 
is  supported  by  a  scintilla  of  evidence;  but  the  scintilla  doctrine  has 
been  discarded  in  this  state,  and  is  not  now  generally  recognized  else- 
where. Meyer  v.  Houck,  85  Iowa,  319,  52  N.  W.  235.  The  general 
scope  and  extent  of  the  judge's  supervisory  power  with  reference  to 
the  jury's  verdict  as  to  questions  of  fact  is  well  illustrated  by  the  very 
first  reported  case  in  which  the  power  appears  to  have  been  exercised 
— that  of  Wood  v.  Gunston,  decided  in  1655  by  the  Court  of  King's 
Bench  (or,  as  it  was  called  during  the  commonwealth.  Upper  Bench), 
found  in  Style's  Reports,  on  page  466.  The  action  was  upon  the  case 
for  speaking  scandalous  words  against  the  plaintiff,  charging  him, 
among  other  things,  with  being  a  traitor.     The  jury  gave  plaintiff 

''J  Part  of  the  opinion  is  omitted. 


Ch.  1)  IN  GENERAL.  73 

£1,500  damages,  whereupon  the  defendant  moved  for  a  new  trial  on 
the  ground  that  the  damages  were  excessive,  and  that  the  jury  had 
favored  the  plaintiff.  In  opposition  to  this  it  was  said  in  argument 
that,  after  a  verdict  the  partiality  of  the  jury  ought  not  to  be  ques- 
tioned, nor  was  there  any  precedent  for  it  "in  our  books  of  the  law," 
and  that  it  would  be  of  dangerous  consequence  if  it  should  be  permit- 
ted, and  the  greatness  of  the  damages  cannot  be  a  cause  for  a  new 
trial.  But  counsel  for  the  other  party  said  that  the  verdict  was  a 
"packed  business,"  else  there  could  not  have  been  so  great  damages, 
and  that  the  court  had  power  "in  extraordinary  cases  such  as  this  is 
to  grant  a  new  trial."  The  chief  justice  thereupon  said :  "It  is  in  the 
discretion  of  the  court  in  some  cases  to  grant  a  new  trial,  but  this 
must  be  a  judicial,  and  not  an  arbitrary,  discretion,  and  it  is  frequent 
in  our  books  for  the  court  to  take  notice  of  miscarriages  of  juries,  and 
to  grant  new  trials  upon  them.  And  it  is  for  the  people's  benefit  that 
it  should  be  so,  for  a  jury  may  sometimes,  by  indirect  dealings,  be 
moved  to  side  with  one  party,  and  not  to  be  indifferent  betwixt  them, 
but  it  cannot  be  so  intended  with  the  court;  wherefore  let  there  be 
a  new  'trial  the  next  term,  and  the  defendant  shall  pay  full  costs,  and 
judgment  to  be  upon  this  verdict  to  stand  for  security  to  pay  what 
shall  be  recovered  upon  the  next  verdict."  This  case  is  especially  in- 
teresting in  connection  with  the  present  discussion,  because  it  is  one 
m  which  the  assessment  of  damages  was  peculiarly  within  the  province 
of  the  jury,  and  because  the  nature  of  the  supervisory  power  of  the 
trial  judge  is  explained  as  being,  in  effect,  to  set  aside  a  verdict  for 
excessive  damages  in  such  cases  which  seem  to  have  been  the  result 
of  passion  and  prejudice,  and  not  the  deliberate  exercise  of  judgment. 
That  the  practice  of  granting  new  trials  under  such  circumstances  has 
continued  in  all  the  courts  administering  the  common  law  from  the 
time  of  the  case  just  cited  to  the  present  time  is  a  matter  of  common 
knowledge  with  the  profession,  and  citation  of  authorities  would  be 
superfluous.  That  the  power  is  exercised  to  prevent  miscarriage  of 
justice  by  reason  of  the  rendition  of  a  verdict  by  the  jury  which  is 
wholly  unreasonable,  in  view  of  the  testimony  which  is  given  in  the 
presence  of  the  court,  is  universally  conceded. 

But  the  question  with  which  we  are  now  more  particularly  con- 
cerned is  whether  this  power  of  the  trial  judge  may  be  exercised 
where  the  injustice  consists  in  rendering  a  verdict  for  too  small  an 
amount.  If  the  case  is  one  in  which  the  measure  of  damages  is  a  ques- 
tion of  law,  the  court  has,  of  course,  the  same  power  to  set  aside  a  ver- 
dict for  too  small  an  amount  as  one  which  is  excessive ;  and  this  is, 
in  general,  true  without  question  where  the  damages  are  capable  of 
exact  computation — that  is,  where  the  facts  established  by  the  verdict 
of  the  jury  show  as  matter  of  law  how  much  the  recovery  should  be. 
In  such  cases  the  court  may  grant  a  new  trial,  unless  the  defendant 
will  consent  to  a  verdict  for  a  larger  amount,  fixed  by  the  court,  than 
that  found  by  the  jury;   just  as  in  case  of  excessive  damages  under 


74  DISCRETIONARY  DAMAGES.  (Part   4 

similar  circumstances  the  court  may  reduce  the  amount  for  which  the 
verdict  shall  be  allowed  to  stand,  on  penalty  of  setting  it  aside  if  the 
successful  party  does  not  agree  to  the  reduction.  Carr  v.  Miner,  42 
111.  179 ;  James  v.  IMorey,  44  111.  352.  It  seems  to  have  been  thought 
by  some  courts  that  the  general  supervisory  power  over  verdicts,  where 
the  amount  of  damage  is  not  capable  of  computation,  and  rests  in  the 
sound  discretion  of  the  jury,  should  not  be  exercised  where  the  ver- 
dict is  for  too  small  an  amount ;  at  least  not  with  the  same  freedom  as 
in  cases  where  it  is  excessive.  Barker  v.  Dixie,  2  Strange,  1051 ; 
Pritchard  v.  Hewitt,  91  Mo.  547,  4  S.  W.  437,  60  Am.  Rep.  265 ;  Mar- 
tin V.  Atkinson,  7  Ga.  228,  50  Am.  Dec.  403.  No  such  limitation  on 
the  supervisory  power  of  the  trial  judge  has  been  definitely  established, 
and  by  the  great  weight  of  authority,  both  in  England  and  America, 
the  power  to  set  aside  the  verdict,  when  manifestly  inconsistent  with 
the  evidence,  and  the  result  of  a  misconception  by  the  jury  of  their 
powers  and  duties,  is  as  fully  recognized  where  the  verdict  is  inade- 
quate as  where  it  is  excessive ;  and  ample  illustration  of  the  exercise 
of  this  power  is  found  in  actions  to  recover  damages  for  personal  in- 
juries or  injury  to  the  reputation,  although  in  such  cases  the  amount 
of  damage  is  peculiarly  within  the  jury's  discretion.  Phillips  v.  Lon- 
don &  S.  W.  R.  Co.,  5  Q.  B.  D.  781 ;  Robinson  v.  Town  of  Waupaca, 
77  Wis.  544,  66  N.  W.  809;  Whitney  v.  Milwaukee,  65  Wis.  -^09, 
27  N.  W.  39;  Caldwell  v.  Vicksburg,  S.  &  P.  R.  Co.,  41  La.  Ann.  624, 
6  South.  217;  Benton  v.  Collins,  125  N.  C.  83,  34  S.  E.  242,  47  L. 
R.  A.  33 ;  McNeil  v.  Lyons,  20  R.  I.  672,  40  Atl.  831 ;  Lee  v.  Pub- 
lishers, George  Knapp  &  Co.,  137  Mo.  385,  38  S.  W.  1107 ;  McDonald 
V.  Walter,  40  N.  Y.  551;  Carter  v.  Wells,  Fargo  &  Co.  (C.  C.)  64  Fed. 
1007.    *     *    * 


PHILLIPS  V.  LONDON  &  S.  W.  R.  CO. 

(Court  of  Appeal,  1879.     U  R,  4  Q.  B.  Div.  406.) 

CocKBURN,  C.  J.^*  This  was  an  action  brought  by  the  plaintiff  to 
recover  damages  for  injuries  suffered,  when  traveling  on  the  defend- 
ants' railway,  through  'the  negligence  of  their  servants.  A  verdict 
having  passed  for  the  plaintiff  with  £7000  damages,  an  application  is 
made  to  this  court  for  a  new  trial,  on  behalf  of  the  plaintiff,  on  the 
ground  of  the  insufficiency  of  the  damages  as  well  as  on  that  of  mis- 
direction as  having  led  to  an  insufficient  assessment  of  damages ;  and 
we  are  of  opinion  that  the  rule  for  a  new  trial  must  be  made  absolute ; 
not  indeed  on  the  ground  of  misdirection,  for  we  are  unable  to  find 
any  misdirection,  the  learned  judge  having  in  effect  left  the  question 
of  damages  to  the  jury,  with  a  due  caution  as  to  the  limit  of  compen- 

14  Part  of  the  opinion  is  omitted. 


Ch.  1)  IN   GENERAL.  75 

sation,  though  we  think  it  might  have  been  more  explicit  as  to  the''" 
elements  of  damage. 

It  is  extremely  difficult  to  lay  down  any  precise  rule  as  to  the  meas- 
ure of  damages  in  cases  of  personal  injury  like  the  present.  No  doubt, 
as  a  general  rule,  where  injury  is  caused  to  one  person  by  the  wrong- 
ful or  negligent  act  of  another,  the  compensation  should  be  com- 
mensurate to  the  injury  sustained.  But  there  are  personal  injuries 
for  which  no  amount  of  pecuniary  damages  would  afford  adequate 
compensation,  while,  on  the  other  hand,  the  attempt  to  award  full 
compensation  in  damages  might  be  attended  with  ruinous  consequen- 
ces to  defendants  who  cannot  always,  even  by  the  utmost  care,  protect 
themselves  against  carelessness  of  persons  in  their  employ.  Gener- 
ally speaking,  we  agree  with  the  rule  as  laid  down  by  Brett,  J.,  in 
Rowley  v.  London  &  Northwestern  Ry.  Co.,  Law  Rep.  8  Ex.  231, 
an  action  brought  on  St.  9  &  10  Vict.  c.  93,  that  a  jury  in  these  cases 
"must  not  attempt  to  give  damages  to  the  full  amount  of  a  perfect 
compensation  for  the  pecuniary  injury,  but  must  take  a  reasonable 
view  of  the  case,  and  give  what  they  consider  under  all  the  circum- 
stances a  fair  compensation."  And  this  is  in  effect  what  was  said  by 
Mr.  Justice  Field  to  the  jury  in  the  present  case.  But  we  think  that 
a  jury  cannot  be  said  to  take  a  reasonable  view  of  the  case  unless  they 
consider  and  take  into  account  all  the  heads  of  damage  in  respect  of 
which  a  plaintiff  complaining  of  a  personal  injury  is  entitled  to  com- 
pensation. These  are  the  bodily  injury  sustained ;  the  pain  under- 
gone; the  eft'ect  on  the  health  of  the  sufferer,  according  to  its  degree 
and  its  probable  duration  as  likely  to  be  temporary  or  permanent; 
the  expenses  incidental  to  attempts  to  effect  a  cure,  or  to  lessen  the 
amount  of  injury;  the  pecuniary  loss  sustained  through  inability  to 
attend  to  a  profession  or  business  as  to  which,  again,  the  injury  may 
be  of  a  temporary  character,  or  may  be  such  as  to  incapacitate  the 
party  for  the  remainder  of  his  life.  If  a  jury  have  taken  all  these 
elements  of  damage  into  consideration,  and  have  awarded  what  they 
deemed  to  be  fair  and  reasonable  compensation  under  all  the  circum- 
stances of  the  case,  a  court  ought  not,  unless  under  very  exceptional 
circumstances,  to  disturb  their  verdict.  But  looking  to  the  figures  in 
the  present  case,  it  seems  to  us  that  the  jury  must  have  omitted  to 
take  into  account  some  of  the  heads  of  damage  which  were  properly 
involved  in  the  plaintiff's  claim. 

The  plaintiff  was  a  man  of  middle  age  and  of  robust  health.  His 
health  has  been  irreparably  injured  to  such  a  degree  as  to  render  life 
a  burden  and  source  of  the  utmost  misery.  He  has  undergone  a 
great  amount  of  pain  and  suffering.  The  probability  is  that  he  will 
never  recover.  His  condition  is  at  once  helpless  and  hopeless.  The 
expenses  incurred  by  reason  of  the  accklent  have  already  amounted 
to  £1000.  Medical  attendance  still  is  and  Is  likely  to  be  for  a  long  time 
necessary.  He  was  making  an  income  of  £5000  a  year,  the  amount 
of  which  has  been  positively  lost  for  sixteen  months  between  the  ac- 


76  DISCRETIONARY  DAMAGES.  (Part  4 

cident  and  the  trial,  through  his  total  incapacity  to  attend  to  his  pro- 
fessional business.  The  positive  pecuniary  loss  thus  sustained  all 
but  swallows  up  the  greater  portion  of  the  damages  awarded  by  the 
jury.  It  leaves  little  or  nothing  for  health  permanently  destroyed  and 
income  permanently  lost.  We  are  therefore  led  to  the  conclusion,  not 
only  that  the  damages  are  inadequate,  but  that  the  jury  must  have 
omitted  to  take  into  consideration  some  of  the  elements  of  damage 
which  ought  to  have  been  taken  into  account. 

It  was  contended,  on  behalf  of  the  defendants,  that  even  assuming 
the  damages  to  be  inadequate,  the  court  ought  not  on  that  account 
to  set  aside  the  verdict  and  direct  a  new  trial,  inadequacy  of  damages 
not  being  a  sufficient  ground  for  granting  a  new  trial  in  an  action 
of  tort,  unless  there  has  been  misdirection,  or  misconduct  in  the  jury, 
or  miscalculation,  in  support  of  which  position  the  cases  of  Rendall 
V.  Hayward,  5  Bing.  N.  C.  424,  and  Forsdike  v.  Stone,  Law  Rep,  3 
C.  P.  607,  were  relied  on.  But  in  both  those  cases  the  action  was  for 
slander,  in  which,  as  was  observed  by  the  judges  in  the  latter  case,  the 
jury  may  consider,  not  only  what  the  plaintiff  ought  to  receive,  but 
what  the  defendant  ought  to  pay.  We  think  the  rule  contended  for 
has  no  application  in  a  case  of  personal  injury,  and  that  it  is  perfect- 
ly competent  to  us  if  we  think  the  damages  unreasonably  small  to  or- 
der a  new  trial  at  the  instance  of  the  plaintiff.  There  can  be  no  doubt 
of  the  power  of  the  court  to  grant  a  new  trial  where,  in  such  an  action 
the  damages  are  excessive.  There  can  be  no  reason  why  the  same 
principle  should  not  apply  where  they  are  insufficient  to  meet  the  jus- 
tice of  the  case.     *     *     *  ^^ 

15  Stockton,  J.,  in  Manix  v.  Moloney,  7  Iowa,  SI  (185S): 

"Tbe  motion  for  a  new  trial  was  upon  two  grounds:  (1)  Misbehavior  of 
ttie  jury ;  {'2)  newly  discovered  evidence  since  the  trial. 

"In  support  of  the  first  ground,  the  defendant  produced  the  affidavit  of 
two  of  the  jurors,  who  tried  the  cause,  who  made  oath,  that  the  jury,  in  order 
to  arrive  at  the  plaintiff's  damages,  agreed  that  each  one  should  mark  down 
such  sum  as  he  thought  fit;  that  the  aggregate  should  be  divided  by  twelve; 
and  that  the  quotient  should  be  the  verdict;  that  this  agreement  was  carried 
out  by  each  juror  setting  down  his  sum  and  dividing  the  aggregate  by  twelve ; 
and  that  the  quotient  thus  obtained,  was  returned  to  the  court  as  the  ver- 
dict of  the  jury. 

"This  conduct  in  a  jury  has  been  held  sufficient  to  invalidate  their  verdict. 
Smith  V.  Cheetham,  3  Caines  (N.  Y.)  57.  In  the  case  cited,  Spencer,  J.,  said: 
'If  this  practice  be  tolerated,  it  will  prevent  that  discussion  and  examina- 
tion so  necessary  to  the  development  of  truth  and  so  essential  to  justice.'  Liv- 
ingston, J.,  said:  'Every  verdict  should  be  the  result  of  reflection,  and  not 
the  effect  of  chance  or  lot.  Jurors  being  sworn  to  determine  "accordhig  to 
evidence,"  suitors  have  a  right  to  expect  that  they  will  examine  and  decide 
upon  it,  to  the  best  of  their  ability  and  discernment.  *  *  *  Here  the 
method  of  deciding  as  effectually  precluded  a  proper  exercise  of  judgment 
as  that  of  chance,  and,  what  is  worse,  put  it  in  the  power  of  any  one  juror, 
from  prejudice,  passion,  or  other  bad  motives,  to  ruin  a  defendant.  He  has 
only  to  put  down  a  sum  sufficiently  large,  and,  if  his  fellows  adhere  to  their 
promise,  a  most  outrageous  verdict  will  be  the  consequence.' " 

Cole,  J.,  in  Barton  v.  Holmes,  16  Iowa,  252  (1864): 

"The  jury  returned  a  verdict  for  the  ph^iutiff  for  five  hundred  dollars,  and 
the  defendant  moved  for  a  new  trial  on  the  ground,  among  others,  of  miscon- 


Ch.  1)  IN  GENERAL.  77 

duet  by  the  jury  in  making  up  their  verdict.  In  support  of  this  ground  he 
introduced  the  following  aflidavit  of  a  juror  as  his  only  evidence,  to  wit:  'I, 
Curtis  Wells,  on  my  oath  say  that  the  paper  hereto  attached  is  the  same  paper 
used  by  nie  as  foreman  of  the  jury  in  footing  up  and  ascertaining  what  the 
average  amount  of  the  verdict  in  said  cause  would  amount  to,  in  case  it  was 
adopted;  that  I  was  a  juror  in  said  cause.'  The  paper  attached  contained  a 
column  of  figures  of  twelve  numbers,  seven  of  which  were  five  hundred  each  ; 
two,  one  thousand  each  ;  and  one  each  of  one,  fifty,  and  three  hundred,  footing 
up  five  thousand  eight  hundred  and  fiftj'-one,  and,  divided  by  twelve,  show- 
ing four  hundred  and  eighty-nine  dollars  and  twenty-five  cents.  The  court 
overruled  the  motion,  and  this  ruling  is  assigned  as  error. 

"The  rule  is  well  settled  that,  whenever  the  jurors  agree  In  advance  to  be 
bound  liy  the  result,  and  make  up  their  verdict  by  each  juror  marking  a  sum 
on  a  piece  of  paper,  or  stating  it,  and  the  twelve  sums,  thus  marked  or  stated, 
being  added  together  and  divided  by  twelve,  the  quotient  is  taken  as  the  ver- 
dict, such  finding  is  bad,  and  will  be  set  aside  by  the  court.  Warner  v.  Knbin- 
son,  1  Root  (Tenn.)  194,  1  Am.  Dec.  38 ;  Bennett  v.  Baker,  cited  in  1  humph. 
(Tenn.)  ,S90.  34  Am.  Dec.  655  ;  Manlx  v.  Maloney,  7  Iowa,  81 ;  Smith  v.  Cheetham. 
3  Caines  (N.  T.)  57 ;  Schanler  v.  Porter  et  al.,  7  Iowa,  482 ;  Denton  v.  Lewis.  15 
Iowa,  301.  But  the  showing  in  this  case  falls  far  short  of  the  rule.  The  juror 
does  not  state,  in  his  affidavit,  that  there  was  any  agreement  to  be  liound  bv 
the  result,  or  that  any  one  proposed  that  the  result  of  the  calculation  sliould 
be  taken  as  the  verdict,  but  simply  that  it  was  done  for  the  puriwse  of  'as- 
certaining what  the  average  amount  of  the  verdict  in  said  cause  would  amount 
to,  in  case  it  was  adopted.' 

"In  Dana  v.  Tucker,  4  Johns.  (N.  Y.)  487,  where  the  verdict  was  arrived  at 
in  a  manner  similar  to  this  case,  the  court  say:  'If  the  jurors  previouslv 
agree  to  a  particular  mode  of  arriving  at  their  verdict,  and  to  abide  by  the 
contingent  result  at  all  events,  without  reserving  to  themselves  the  liberty  of 
dissenting,  such  a  proceeding  would  be  improper ;  but  if  the  means  is  adopted 
merely  for  the  sake  of  arriving  at  a  reasonable  measure  of  damages,  without 
binding  the  jurors  by  the  result,  it  is  no  objection  to  the  verdict' 

"In  Ilarvey  v.  Jones.  3  Humph.  (Tenn.)  157,  the  court  say:  'A  jury  may 
make  the  experiment  with  a  view  to  ascertain  what  the  amount  will  be.  and. 
if  the  amount  produced  give  satisfaction,  they  may  retain  it  as  their  verdict. 
But  they  cannot  agree,  before  the  amount  is  ascertained,  that  they  will  abide 
by  it;  and.  if  they  do,  it  is  an  error  for  which  a  new  trial  will  be  granted.' 

"The  affidavit  in  this  case  does  not  show  any  such  previous  agreement  to  be 
bound,  or  other  impropriety  in  the  manner  of  making  up  the  verdict,  as  will 
justify  a  court  in  setting  it  aside,  and  the  judgment  of  the  district  court  is 
affirmed." 


78  DISCRETIONARY  DAMAGES.  (Part   4 

CHAPTER  II. 
AGGRAVATION. 


DRAPER  V.  BAKER. 

(Supreme  Court  of  Wisconsin,  1SS4.     61  Wis.  450,  21  N.  W.  527, 
50  Am.  Rep.  143.) 

Taylor,  J.^  This  is  an  action  to  recover  damages  for  assault  and 
battery.  The  charge  was  that  the  appellant  spit  in  the  face  of  the 
respondent  in  the  courthouse  at  Juneau,  Dodge  county,  in  the  pres- 
ence of  a  large  number  of  persons.     *     *     * 

It  is  not  contended  by  the  learned  counsel  for  the  appellant  that  it 
is  not  competent,  upon  a  trial  of  this  kind,  for  the  plaintiff  to  give  evi- 
dence of  the  financial  condition  of  the  defendant  when  the  circum- 
stances are  such  that  the  plaintiff  may  be  entitled  to  recover  punitory 
damages;  but  he  insists  that  the  financial  condition  of  the  defendant 
cannot  be  shown  by  proof  of  his  reputed  wealth,  but  must  be  confined 
to  facts  directly  showing  such  condition.  We  think  the  objection  was 
not  well  taken.  Most  of  the  cases  hold  that  where  the  financial  con- 
dition of  the  defendant  may  be  shown  in  aggravation  of  the  damages, 
that  the  evidence  shall  be  confined  to  the  question  of  reputed  wealth, 
and  that  evidence  detailing  or  giving  an  inventory  of  the  de- 
fendant's property  is  not  admissible.  *  *  *  Jt  would  seem  that 
where  the  pecuniary  circumstances  of  a  defendant  are  held  to  be  admis- 
sible upon  the  question  of  compensatory  damages,  evidence  of  the  ac- 
tual wealth  of  the  defendant  should  not  be  admitted;  but  where  evi- 
dence of  the  wealth  of  the  defendant  is  admitted  for  the  purpose  of 
enhancing  the  exemplary  or  punitive  damages,  the  actual  wealth  of  the 
defendant  may  be  shown.     *     *     * 

It  is  urged  that  a  new  trial  should  have  been  granted  because  the 
damages  are  excessive.  The  jury  assessed  the  damages  at  $1,200.  If 
the  defendant  committed  the  assault  as  it  is  alleged  he  did,  and  under 
the  circumstances  which  attended  and  surrounded  the  parties  at  the 
time, — and,  so  far  as  this  court  is  concerned,  we  are  bound  to  presume 
that  it  was  so  committed, — we  cannot  say  that  the  damages  assessed 
are  excessive.  The  provocation,  if  any,  which  was  offered  to  the  de- 
fendant, his  age,  and  all  the  other  circumstances  attending  the  transac- 
tion, were  all  undoubtedly  fully  presented  to  the  jury  and  considered 
by  them,  and  their  verdict  is  not  so  large  as  to  induce  this  court  to  be- 
lieve that  they  were  actuated  by  passion,  prejudice,  or  other  improper 
motives  in  giving  the  amount  of  the  plaintiff's  damages.     *     *     *  2 

1  Part  of  the  opinion  is  omitted. 

2  Pollock,  C.  B.,  in  Bmblen  v.  Myers,  6  Hurl.  &  N.  54  (ISGO): 

"It  is  universally  felt,  by  all  persons  who  have  had  occasion  to  consider 


Ch.  2)  AGGRAVATION.  79 

FARRAND  v.  ALDRICH. 
(Supreme  Court  of  Michigan,  1891.    85  Mich.  593,  48  N.  W.  028.) 

Action  of  libel.  Verdict  and  jud,c:ment  for  plaintifiF  for  $1,000.  The 
libelous  article  was  published  in  the  Cokhvater  Republican  July  20, 
1888,  which  newspaper  was  owned  and  published  by  the  defendants. 

Grant,  j^^  *  *  *  The  jury  were  instructed  upon  the  measure 
of  damages  that  plaintiff  was  entitled  to  recover  for  injury  to  her  fcel- 
inq-s,  character,  and  reputation ;  for  humiliation,  shame,  and  disgrace 
which  the  publication  brought  upon  her;  and  for  illness  of  body  and 
worry  of  mind.  Defendants  insist  that  the  jury  having  acquitted  the 
defendants  of  malice,  and  therefore  of  willfulness  in  the  publication, 
mental  suffering  is  not  an  element  of  actual  damage,  If  this  were  the 
rule,  one  of  the  principal  elements  of  damage  would  be  excluded. 
If  a  virtuous  young  woman  is  entitled  to  no  consideration  for  her  in- 
jured feelings  when  she  has  been  publicly  charged  with  the  grossest 
immorality,  courts  might  as  well  deny  her  a  cause  of  action.  Nor  do 
we  think  it  was  error  to  charge  the  jury  that  they  might  consider  the 
effect  of  that  such  a  publication  would  have  upon  her  in  the  fu- 
ture.    *     *     * 


LUCAS  v.  FLINN., 

(Supreme  Court  of  Iowa,  1872.     35  Iowa.  9.) 

Beck,  J.s  *  *  *  The  court  instructed  the  jury  that,  in  esti- 
mating plaintiff's  damage,  they  should  not  only  consider  his  pecuniary  ' '  ^  "^  . 
loss,  including  loss  of  time,  outlays  for  medicine  and  medical  attend- \^'^^^^' 
ance,  etc.,  but  also  the  physical  suffering  consequent  upon  the  injury, 
and  the  mental  anguish  and  injury  to  business  and  social  standing  suf- 
fered by  plaintiff.  In  our  opinion  the  rule  here  announced  is  correct. 
The  defendant's  counsel  insist  that  the  latter  part  relating  to  physical 
suffering,  mental  anguish,  injury  to  business  and  social  standing  is 
erroneous.  They  admit  that,  had  the  petition  alleged  the  assault  to 
have  been  maliciously  made,  the  rule  of  the  instruction  could  be  sus- 
tained.    We  think  there  is  no  such  limit  upon  the  damages  as  is  con- 

the  question  of  compensation,  that  there  is  a  difference  between  an  injury 
whicli  is  the  mere  result  of  such  ncfili.u'cnce  as  amoimts  to  little  more  than 
accident,  and  an  injury,  willful  or  neglijicut,  which  is  accompanied  with  ex- 
pressions of  insolence.  I  do  not  say  that  in  actions  of  negligence  there  should 
be  vindictive  damages,  such  as  are  sometimes  given  in  actions  of  trespass,  hut 
the  measure  of  damage  should  be  different,  according  to  the  nature  of  the 
injury  and  the  circumstances  with  which  it  is  accompanied." 
R.vles.  J.,  in  Bell  v.  Midland  Ry.,  10  C.  B.  (N.  S.)  287  (1801): 
•'Wliere  a  wrongful  act  is  accompanied  by  words  of  contumely  and  abuse, 
the  jury  are  warranted  in  talilug  that  into  consideration  and  giving  retributory 
damages." 

3  Part  of  the  opinion  is  omitted. 


.   0>^-C^-^  \jir\Z,u^ 


\ 


80  0        4^  f,  .    DISCRETIONARY  DAMAGESv     .  (Part   4 

tended  for  by  counsel.  *  *  *  Social  standing  is  of  value  to  man 
and  is  protected  by  the  law.  Injury  thereto,  if  a  direct  consequence  of 
the  violence,  ought  to  be  an  element  in  the  computation  of  damages. 
The  argument  that  damages  based  upon  such  injuries  are  difficult  of 
computation  cannot  defeat  the  right  to  their  recovery.     *     *     *  » 


MERRILLS  v.  TARIFF  MFG.  CO. 

(Supreme  Court  of  Connecticut,  1835.     10  Conn.  384,  27  Am.  Dec.  682.) 

Action  on  the  case  by  the  owner  of  one  moiety  of  a  mill  and  water 
privileges  against  the  owner  of  the  other  moiety  for  expelling  plaintiff 
from  the  premises,  and  for  injuries  to  plaintiff's  business. 

Huntington,  J.^  (t  This  case  comes  before  us  to  correct  a  supposed 
error,  in  the  instruction  given  to  the  jury  at  the  trial,  that,  in  estimat- 
ing the  damages,  they  were  at  liberty  to  take  into  consideration,  the 
fraudulent  and  malicious  motives  and  objects  with  which  the  defend- 
ants are  charged  to  have  committed  the  injury  set  forth  in  the  dec- 
laration, i  *  *  *  y^Q  think  that  the  rule  which  ought  to  govern 
juries  in  assessing  damages  for  injuries  to  personal  property,  depends, 
not  so  much  on  the  form  of  the  action,  as  on  the  circumstances  attend- 
ing the  case ;  and  that  whether  redress  is  sought,  by  an  action  of 
trespass  or  on  the  case  (and  especially  where  the  latter  is  the  only 
remedy,  as  in  the  present  case),  if  the  injury  is  averred  and  proved 
to  have  been  committed  maliciously,  wantonly,  to  gratify  revenge,  from 
a  spirit  of  ill  will,  and  a  desire  to  injure,  or  with  the  view  of  obtaining 
unlawfully  and  with  a  fraudulent  intent,  a  benefit  to  the  defendant, 
by  means  of  the  injury  to  the  property  of  the  plaintiff,  these  circum- 
stances of  aggravation,  may,  with  great  propriety,  be  consiaered  in 
fixing  the  remuneration  to  which  the  plaintiff  is  entitled.     *     *     * 

In  actions  on  the  case,  for  injuries  to  incorporeal  rights,  where  it 
is  averred  and  proved  that  they  were  violated  from  malicious  motives, 
with  the  sole  design  to  injure,  it  seems  to  us  to  be  consonant  with  the 
immutable  principles  of  justice,  that  the  same  measure  of  redress 
should  be  awarded  in  such  actions,  as,  it  is  admitted,  would  and  ought 
to  be  given  for  similar  injuries,  committed  in  a  similar  manner,  and 
where  trespass  would  be  the  appropriate  form  of  action.  *  *  * 
The  opinion  now  expressed  is  in  accordance  with  the  decision  in  Gun- 
ter  V.  Astor,  4  Moore,  12.    In  that  case,  it  is  quite  apparent,  that  the 

B  An  unproved  plea  of  truth  in  slander  (Warwick  v.  Foulkes,  12  Mees.  &  W. 
508  [1844]),  or  of  justification  for  breach  of  promise  upon  ground  of  plain- 
tiff's wanton  conduct  (Southard  v.  Rexford,  6  Cow.  [N.  Y.]  254  [1826];  Kniffen 
V.  McConnell,  30  N.  Y.  285  [18G4]),  have  been  deemed  an  aggravation  of  the 
original  injury.  But  the  rule  now  probably  is  that  malice  must  be  shown. 
Corbley  v.  Wilson,  71  111.  209,  22  Am.  Rep.  98  (1874) ;  Alberts  v.  Albertz,  78 
Wis.  72,  47  N.  W.  95,  10  L.  R.  A.  584  (1890). 

6  Part  of  the  opinion  Is  omitted,  and  the  statement  of  facts  Is  rewritten. 


2.f.-.  ,■►=>-  ■  -^^,,  .<<  t--  :  .  --  — 

Ch.  2)  AGGRAVATION.  81    =^(www  W 

court  considered  the  manner  in  which  the  defendant's  committed  the 
injury,  as  having  been  properly  considered  by  the  jury,  in  estimating 
the  damages.  It  was  an  action  on  the  case  for  enticing  away  the 
plaintiff's  workmen  from  his  manufactory,  to  go  into  the  service  of 
the  defendants.  They  were  invited  by  the  defendants  to  a  dinner — 
who  caused  them  to  be  intoxicated,  and  then  induced  them  to  sign  an 
agreement  to  leave  the  plaintiff  and  come  to  them.  It  was  proved 
that  the  plaintiff  realized  about  eight  hundred  pounds  per  annum  by 
the  sale  of  his  manufactured  articles;  and  the  jury  gave  him  one 
thousand  six  hundred  pounds.  A  motion  for  a  new  trial,  on  the 
ground  of  excessive  damages  was  made  and  argued;  but  was  re- 
fused. Dallas,  C.  J.,  said :  "I  left  it  to  the  jury  to  give  damages  com- 
mensurate with  the  injury  the  plaintiff  had  sustained.  The  defendants 
clandestinely  sent  for  his  workmen,  and  having  caused  them  to  be  in- 
toxicated, induced  them  to  sign  an  agreement  to  leave  him  and  come 
to  them;  by  which  the  plaintiff  was  nearly,  if  not  absolutely,  ruined. 
I  am  by  no  means  dissatisfied  with  the  verdict  the  jury  have  found ; 
as  the  conduct  of  the  defendants  in  point  of  fact,  amounted  to  an  ab-  '><-  >«-'' 
solute  conspiracy."  Park  said:  "The  misconduct  of  the  defend- C*-**----* 
ants,  in  this  case,  appears  to  have  been  most  gross."  '***- 

We  think  the  instruction  to  the  jury  was  correct.     ♦     ♦     * 


-^    . 

OSMUN  V.  WINTERS. 

(Supreme  Court  of  Oregon,  1894.    25  Or.  260,  35  Pac.  250.) 


^^Aro.•«^^ 


The  plaintiff  alleged  a  breach  of  promise  of  marriage  and  her  se- 
duction by  the  defendant  under  the  promise.  The  jury  returned  a 
verdict  for  the  plaintiff  for  $10,000. 

Bean,  j.t  *  *  *  j^.  jg  contended  that  seduction  cannot  be  al- 
leged and  proved  as  an  element  of  damages  in  an  action  for  a  breach 
of  a  promise  of  marriage.  Upon  this  question  there  is  some  slight 
conflict  in  the  books,  but  the  decided  current  of  authority,  both  in  this 
country  and  England,  is  that,  while  damages  for  seduction,  as  a  dis- 
tinct ground  of  action,  cannot  be  added  to  the  damages  which  plaintiff' 
is  entitled  to  recover  for  a  breach  of  the  promise  to  marry,  it  may,  if 
alleged,  be  shown  in  aggravation  of  damages,  on  the  ground  that  com- 
pensation for  the  injury  she  has  received  by  the  breach  of  the  contract 
cannot  be  justly  estimated  without  taking  into  consideration  the  in- 
creased humiliation  and  distress  to  which  she  has  been  exposed  by 
the  defendant's  conduct.  The  action  is  nominally  for  a  breach  of  con- 
tract, but  the  damages  are  awarded  upon  principles  more  commonly 
applicable  to  actions  of  tort;  and,  if  seduction  is  brought  about  by  a 
reliance  upon  the  contract,  it  may  in  no  very  indirect  way  be  said  to 

'  Part  of  the  opinion  is  omitted,  and  the  statement  of  facts  is  rewritteii. 
Gilb.Dam. — 6 


82  DISCRETIONARY  DAMAGES.  (Part   4 

be  a  breach  of  its  implied  conditions.  "Such  an  engagement,"  says 
Mr.  Justice  Campbell,  "brings  the  parties  necessarily  into  very  inti- 
mate and  confidential  relations,  and  the  advantage  taken  of  those 
relations  by  the  seducer  is  as  plain  a  breach  of  trust  in  all  its  essen- 
tial features  as  any  advantage  gained  by  a  trustee  or  guardian  or 
confidential  adviser,  who  cheats  a  confiding  ward  or  beneficiary  or 
client  into  a  losing  bargain.  It  only  differs  from  ordinary  breaches 
of  trust  in  being  more  heinous.  A  subsequent  refusal  to  marry  the 
person  whose  confidence  has  been  thus  deceived  cannot  fail  to 
be  aggravated  in  fact  by  the  seduction.  The  contract  is  twice  brok- 
en. The  result  of  an  ordinary  breach  of  promise  is  the  loss  of  the 
alliance,  and  the  mortification  and  pain  consequent  on  the  rejection. 
But  in  case  of  seduction  there  is  added  to  this  a  loss  of  character  and 
social  position,  and  not  only  deeper  shame  and  sorrow,  but  a  darken- 
ed future.  All  of  these  spring  directly  and  naturally  from  the  broken 
obligation.  The  contract  involves  protection  and  respect,  as  well 
as  affection,  and  is  violated  by  the  seduction  as  it  is  by  the  refusal  to 
marry.  A  subsequent  marriage  condones  the  first  wrong,  but  a  re- 
fusal to  marry  makes  the  seduction  a  very  grievous  element  of  injury, 
that  cannot  be  lost  sight  of  in  any  view  of  justice."  Sheahan  v.  Barry, 
27  Mich.  219.     *     *     * 

It  is  also  claimed  that  the  court  erred  in  instructing  the  jury  that 
if  they  found  from  the  evidence  that  the  promise  of  marriage  was 
made,  and  justification  for  breaking  off  the  promise  had  not  been 
proven,  and  that  there  was  seduction,  then  they  must  consider  the  se- 
duction in  assessing  the  damages.  In  actions  of  this  character  the 
question  of  damages  belongs  exclusively  to  the  jury,  subject,  of  course, 
to  the  power  of  the  court  to  set  aside  the  verdict  if  against  the  evi- 
dence, or  when  excessive  damages  are  allowed.  There  are  no  hard 
or  fast  rules  by  which  the  amount  can  be  determined.  Each  case  must 
be  dealt  with  according  to  its  own  particular  circumstances.  While 
seduction  under  a  promise  of  marriage  may  be  alleged  and  proven  in 
aggravation  of  damages,  yet  it  is  for  the  jury  alone  to  determine  what 
weight,  if  any,  is  to  be  given  to  such  testimony,  and  what  effect  it 
will  have  in  determining  the  amount  of  damages  to  which  plaintiff  is 
entitled.  That  portion  of  the  instruction  complained  of  deprived  the 
jury,  in  case  they  found  the  facts  referred  to,  of  all  discretion  upon 
the  question  as  to  whether  they  should  consider  the  seduction  in  as- 
sessing damages.  They  were  told  that  in  that  event  they  must  so 
consider  it.  Such  we  do  not  understand  to  be  the  law.  In  an  ordi- 
nary action  for  a  breach  of  contract  the  amount  recovered  is  limited 
to  the  actual  damages  caused  by  the  breach.  ;  To  this  rule  there  is  an 
exception  in  an  action  for  breach  of  promise  of  marriage,  because, 
although  founded  on  contract,  it  is  regarded  as  being  somewhat  in 
the  nature  of  an  action  founded  upon  tort;  but  the  cases  sustaining 
the  exception  go  no  further  than  to  hold  that  it  should  be  left  to  the 
good  judgment  and  discretion  of  the  jury  whether  or  not  there  should 


Ch.  2)  AGGRAVATION.  83 

be  added  to  the  damages  naturally  resulting  from  a  breach  of  the  con- 
tract anything  on  account  of  seduction  accomplished  under  the  prom- 
ise.)   *     *     * 

From  plaintiff's  own  testimony  it  appears  that  she  was  not  inexperi- 
enced in  the  ways  of  the  world,  but  was  of  mature  years,  had  been 
married,  and  became  engaged  to  the  defendant,  who  is  an  old  man. 
within  two  weeks  after  her  first  acquaintance  with  him;  that  she 
left  the  home  of  her  aunt  and  uncle,  where  she  was  living,  and  went 
to  defendant's  rooms,  where  she  claims  to  have  been  seduced,  and  liv- 
ed with  him  as  his  "promised  wife"  for  some  time  before  the  alleged 
seduction  took  place,  and  continued  to  live  with  him  afterwards  with- 
out complaint;  and  that  the  alleged  seduction  was  not  disclosed  to 
any  person,  or  known  by  any  one  except  the  parties,  until  the  plain- 
tiff consulted  counsel  for  the  purpose  of  bringing  this  action.  Under 
these  circumstances  it  was  prejudicial  error  to  tell  the  jury  that  if  they 
found  the  seduction  they  must  consider  it  in  estimating  the  damages. 
It  should  have  been  left  to  the  sound  judgment  and  discretion  of  the 
jury,  under  all  the  circumstances  of  the  case,  with  the  direction  that 
they  should  exercise  their  own  judgment,  and  consider  the  seduction 
or  not,  as  to  them  might  seem  just  and  proper.     *     *     * 


WARD  V.  BLACKWOOD. 
(Supreme  Court  of  Arkansas,  1SS3.     41  Ark.  2'do,  48  Am.  Rep.  41.) 

Massey  sued  Ward  in  an  action  ex  delicto.  After  the  issues  had  been 
made  up,  the  plaintiff  died.  Air.  Blackwood  qualified  as  his  adminis- 
trator, and  the  action  was  revived  in  his  name  and  proceeded  to  a  trial, 
which  resulted  in  a  verdict  against  Ward  for  two  thousand  dollars 
damages. 

Smith,  j.s  *  *  *  fi^g  defendant  was  the  lessee  of  the  peni- 
tentiary. The  plaintiff  was  employed  as  a  guard,  and  was  especially 
instructed  to  be  viligant  and  never  permit  a  convict  to  come  nearer 
him  than  twenty-five  yards.  He  was  not  a  man  of  strong  constitution 
and  was  in  rather  feeble  health.  He  seems  to  have  fallen  asleep  on 
his  post  about  ten  o'clock  in  the  morning,  and  three  convicts,  taking 
advantage  of  his  condition,  disarmed  him  and  made  good  their  es- 
cape. They  were  fired  upon  by  the  other  guards,  and  in  the  midst 
of  the  commotion  the  defendant  came  into  the  yard,  and  being  enrag- 
ed at  the  escape  of  the  convicts,  seized  a  clapboard,  and  struck  the 
plaintiff  three  or  four  times  over  the  shoulders  and  back. 

This  does  not  impress  us  as  a  proper  case  for  the  infliction  of  ex- 
emplary damages  or  smart  money.  An  employer  who,  in  a  fit  of  pa.^- 
sion,  assaults  his  servant  for  a  neglect  of  duty,  thereby  commits  a 
breach  of  the  peace  and  an  actionable  wrong.     But  if,  making  due 

8  I'iirt  of  the  opinion  is  omitted. 


84  DISCRETIONARY  DAMAGES.  (Part   4 

allowance  for  the  infirmities  of  human  temper,  the  defendant  has  a 
reasonable  excuse,  arising  from  the  provocation  or  fault  of  the  plain- 
tiff, but  not  sufficient  to  justify  entirely  the  act  done,  then  damages 
ought  not  to  be  assessed  by  way  of  punishment  and  the  circumstances 
of  mitigation  should  be  considered.     *     *     * 

Cushman  v.  Waddell,  1  Baldw.  59,  Fed.  Cas.  No.  3,516,  was  an  ac- 
tion by  a  schoolmaster  against  a  parent  for  a  severe  beating.  The 
plaintiff  had  punished  one  of  his  pupils  for  some  offense.  The  father 
went  to  the  plaintiff's  boarding-house,  attacked  and  beat  him  savagely, 
accompanied  by  very  intemperate  and  vindictive  language  and  other 
circumstances  of  aggravation.  The  court  held  that  no  provocation 
could  excuse  the  defendant  from  making  compensation  for  all  the  in- 
jury the  plaintiff  had  suffered  by  the  unlawful  attack.  But  if  the  jury 
were  satisfied  that,  without  any  previous  malice  towards  the  plaintiff, 
or  any  deliberate  design  to  injure  him  in  person  or  in  the  estimation 
of  the  public,  the  defendant  acted  in  the  heat  of  passion,  caused  by  the 
appearance  and  account  of  his  son,  it  was  a  circumstance  which  ought 
to  operate  powerfully  to  reduce  the  damages  to  such  as  were  com- 
pensatory. 

In  the  case  under  consideration,  there  was  no  evidence  of  previous 
malice,  nor  of  deliberate  cruelty,  only  of  hot  blood  and  a  certain  reck- 
lessness. Ward  had  never  seen  Massey  before.  And  Massey  was 
very  far  from  being  free  from  fault.     *    *    *    Reversed. 


-tX'jcr^^y^^ 


Ch.  3)  EXEMPLARY  DAMAGES.  85 


CHAPTER  III. 

EXEMPLARY  DAMAGES. 


Sj,^4u^ji.  JL|,w/mnr^-^ 


HUCKLE  V.  INIONEY. 

(Court  of  Common  Pleas,  17G3.  2  Wils.  205.) 
Lord  Chief  Justice  Pratt.^  *  *  *  j  gj^^j^  j^^^^  g(.^^.g  ^^le  na- 
ture of  this  case,  as  it  appeared  upon  the  evidence  at  the  trial.  A  war- 
rant was  granted  by  Lord  Halifax,  Secretary  of  State,  directed  to 
four  messengers,  to  apprehend  and  seize  the  printers  and  publishers 
of  a  paper  called  the  North  Briton,  number  45,  without  any  informa- 
tion or  charge  laid  before  the  Secretary  of  State,  previous  to  the  grant- 
ing thereof,  and  without  naming  any  person  whatsoever  in  the  war- 
rant. Carrington,  the  first  of  the  messengers  to  whom  the  warrant  was 
directed,  from  some  private  intelligence  he  had  got  that  Leech  was  the 
printer  of  the  North  Briton,  number  45,  directed  the  defendant  to 
execute  the  warrant  upon  the  plaintiff  (one  of  Leech's  journeymen), 
and  took  him  into  custody  for  about  six  hours,  and  during  that  time 
treated  him  well;  the  personal  injury  done  to  him  was  very  small,  so 
that  if  the  jury  had  been  confined  by  their  oath  to  consider  the  mere 
personal  injury  only,  perhaps  £20.  damages  would  have  been  thought 
damages  sufficient;  but  the  small  injury  done  to  the  plaintifif,  or  the 
inconsiderableness  of  his  station  and  rank  in  life  did  not  appear  to 
the  jury  in  that  striking  light,  in  which  the  great  point  of  law  touch- 
ing the  liberty  of  the  subject  appeared  to  them  at  the  trial;  they  saw  a 
magistrate  over  all  the  King's  subjects,  exercising  arbitrary  power, 
violating  Magna  Charta,  and  attempting  to  destroy  the  liberty  of  the 
kingdom,  by  insisting  upon  the  legality  of  this  general  warrant  before 
them;  they  heard  the  King's  counsel,  and  saw  the  solicitor  of  the 
Treasury,  endeavoring  to  support  and  maintain  the  legality  of  the  war- 
rant in  a  tyrannical  and  severe  manner;  these  are  the  ideas  which 
stmck  the  jury  on  the  trial,  and  I  think  they  have  done  right  in  giving 
exemplary  damages ;  to  enter  a  man's  house  by  virtue  of  a  nameless 
warrant,  in  order  to  procure  evidence,  is  worse  than  the  Spanish  in- 
quisition; a  law  under  which  no  Englishman  would  wish  to  live  an 
hour;  it  was  a  most  daring  public  attack  made  upon  the  liberty  of 
the  subject:  I  thought  that  the  29th  chapter  of  Magna  Charta,  "Nul- 
lus  liber  homo  capiatur  vel  imprisonetur,  &c.  nee  super  eum  ibimus, 
&c.  nisi  per  legale  judicium  parium  suorum  vel  per  legem  terrae,"  &c. 
which  is  pointed  against  arbitrary  power,  was  violated.     I  cannot  say 

1  Part  of  the  opinion  Is  omitted. 


86  DISCRETIONARY  DAMAGES.  (Part   4 

what  damages  I  should  have  given  if  I  had  been  upon  the  jury;  but 
I  directed  and  told  them  they  were  not  bound  to  any  certain  dam- 
ages, against  the  Solicitor  General's  argument.  Upon  the  whole  I 
am  of  opinion  the  damages  are  not  excessive ;  and  that  it  is  very  dan- 
gerous for  the  judges  to  intermeddle  in  damages  for  torts;  it  must  be 
a  glaring  case  indeed  of  outrageous  damages  in  a  tort,  and  which  all 
mankind  at  first  blush  must  think  so,  to  induce  a  court  to  grant  a  new 
trial  for  excessive  damages. 


MEREST  V.  HARVEY. 

(Court  of  King's  Bench,  1814.     5  Taunt.  442.) 

Trespass  for  forcibly  breaking  and  entering  the  plaintiff's  close, 
called  Brandon  Road  Breck,  part  of  Longford  Field,  and  with  feet 
in  walking,  and  with  dogs,  treading  down  and  spoiling  the  plain- 
tiff's grass,  and  with  dogs  and  guns  searching,  hunting,  and  beat- 
ing for  game  there,  and  doing  other  wrongs.  The  cause  was  tried  be- 
fore Heath,  J.,  at  the  Norfolk  springs  assizes  1814.  The  evidence  was, 
that  in  September,  the  plaintiff,  a  gentleman  of  fortune,  was  shoot- 
ing on  his  own  manor  and  estate,  in  a  common  field  contiguous  to  the 
highway,  when  the  defendant,  a  banker,  a  magistrate,  and  a  member 
of  parliament,  who  had  dined  and  drank  freely  after  taking  the  same 
diversion  of  shooting,  passed  along  the  road  in  his  carriage,  and, 
quitting  it,  went  up  to  the  plaintiff  and  told  him  he  would  join  his 
party,  which  the  plaintiff  positively  declined,  inquired  his  name,  and 
gave  him  notice  not  to  sport  on  the  plaintiff's  land ;  but  the  defendant 
declared  with  an  oath  that  he  would  shoot,  and  accordingly  fired  sev- 
eral times,,  upon  the  plaintiff's  land,  at  the  birds  which  the  plaintiff 
found,  proposed  to  borrow  some  shot  of  the  plaintiff,  when  he  had  ex- 
hausted his  own,  and  used  very  intemperate  language,  threatening, 
in  his  capacity  of  a  magistrate,  to  commit  the  plaintiff,  and  defying 
him  to  bring  any  action.  The  witnesses  described  his  conduct  as  be- 
ing that  of  a  drunken  or  insane  person.  The  plaintiff  conducted  him- 
self with  the  utmost  coolness  and  propriety.  A  special  jury  found  a 
verdict  for  the  plaintiff  for  the  whole  damages  in  the  declaration,  £500. 

GiBBS,  C.  J.  I  wish  to  know,  in  a  case  where  a  man  disregards 
every  principle  which  actuates  the  conduct  of  gentlemen,  what  is  to 
restrain  him  except  large  damages?  To  be  sure,  one  can  hardly  con- 
ceive worse  conduct  than  this.  What  would  be  said  to  a  person  in  a 
low  situation  of  life,  who  should  behave  himself  in  this  manner?  I  do 
not  know  upon  what  principle  we  can  grant  a  rule  in  this  case,  unless 
we  were  to  lay  it  down  that  the  jury  are  not  justified  in  giving  more 
than  the  absolute  pecuniary  damage  that  the  plaintiff  may  sustain. 
Suppose  a  gentleman  has  a  paved  walk  in  his  paddock,  before  his  win- 
dow, and  that  a  man  intrudes  and  walks  up  and  down  before  the  win- 
dow of  his  house,  and  looks  in  while  the  owner  is  at  dinner,  is  the 


Ch.  3)  EXEMPLARY   DAMAGES.  87 

trespasser  to  be  permitted  to  say,  "here  is  a  halfpenny  ^or  you,  which 
is  the  full  extent  of  all  the  mischiefs  I  have  done?"  Would  that  be  a 
compensation?     I  cannot  say  that  it  would  be. 

Heath  J  I  remember  a  case  where  a  jury  gave  £oOO.  damages 
for  merely  knocking  a  man's  hat  off;  and  the  court  refused  a  new  trial. 
There  was  not  one  country  gentlemen  in  a  hundred,  who  would  have 
behaved  with  the  laudable  and  dignified  coolness  which  this  plaintitt 
did.  (it  goes  to  prevent  the  practice  of  duelling,  if  juries  are  permit- 
ted to  punish  insult  by  exemplary  damagesA 

Rule  refused. 

SEARS  V.  LYONS. 

(Nisi  Prius,   1818.     2  Starkie,  317.) 
This  was  an  action  of  trespass  for  breaking  the  plaintiff's  close  and 
laying  poison  upon  it,  with  intent  to  destroy  the  plaintiff's  poultry. 

Evidence  was  given  of  the  defendant's  having  strewed  poisoned  bar- 
ley both  on  the  plaintiff's  premises  and  his  own,  into  which  it  appeared 
that  the  fowls  sometimes  escaped;  it  also  appeared  that  some  of  the 
fowls  died  in  consequence.  ^ 

Gurney  for  the  defendant  contended  that  the  plaintiff  was  not  enti- 
tled to  recover  greater  damages  than  the  value  of  the  fowls,  and  that 
the  jury  could  not  take  into  their  consideration  the  malicious  intention 
conceived  by  the  defendant,  and  expressions  which  he  had  made  use  ot 
with  respect  to  the  plaintiff. 

Abbott,   J.,   in  summing  up   the   jury,   cautioned   them   to   guard 
against  the  hostile  feelings  which  the  evidence  they  had  heard  was 
likely  to  excite  in  their  minds  against  the  defendant.    The  action  was 
brouo-ht  for  throwing  poisoned  barley  upon  the  plaintiff  s  premises,  and 
destroying  his  poultry;    and  it  had  been  proved  in  evidence,  that  he 
had  actually  committed  that  injury;   and  that  some  of  the  fowls  had 
died    although,  whether  from  poison  thrown  on  the  plaintiff  s  prem- 
ises or  the  defendant's  did  not  appear.  (It  had  always  been  held,  that 
for  trespass  and  entry  into  the  house  or  lands  of  the  plaintiff   a  jury 
might  consider  not  only  the  mere  pecuniary  damage  sustained  by  the 
plaintiff,  but  also  the  intention  with  which  the  act  had  been  done 
whether  for  insult  or  injury,  and  he  said,  that  they  were  not  confined 
in  this  case  to  the  mere  damage  resulting  from  throwing  poisoned 
barley  on  the  land  of  the  plaintiff,  but  might  consider  also  the  object 
with  which  it  was  thrown,  taking  care  at  the  same  time  to  guard  tfieir 
feelings  against  the  impression  likely  to  have  been  made  by  the  de- 
fendant's conduct. 
The  jury  found  for  the  plaintiff,  damages  £50.' 

2  Pollock    C    B     in  Doe  v.  FilUter.  13  Mees.  &  W.  47  (1844).  said:     "In  |ic- 


88  DISCRETIONARY  DAMAGES.  (Part   4 

DAY  V.  WOODWORTH  et  al. 

(Supreme  Court  of  United  States,  1851.    13  How.  363,  14  L.  Ed.  181.) 

f 

Grier,  J.8  *  *  *  ij.  is  a,  well-established  principle  of  the  com- 
mon law  that,  in  actions  of  trespass  and  all  actions  on  the  case  for 
torts,  a  jury  may  inflict  what  are  called  exemplary,  punitive,  or  vin- 
dictive damages  upon  a  defendant,  having  in  view  the  enormity  o,f 
his  offence  rather  than  the  measure  of  compensation  to  the  plaintiff j 
We  are  aware  that  the  propriety  of  this  doctrine  has  been  question- 
ed by  some  writers;  but  if  repeated  judicial  decisions  for  more  than 
a  century  are  to  be  received  as  the  best  exposition  of  what  the  law  is, 
the  question  will  not  admit  of  argument.  By  the  common  as  well  as 
by  statute  law,  men  are  often  punished  for  aggravated  misconduct  or 
lawless  acts,  by  means  of  a  civil  action  and  the  damages,  inflicted  by 
way  of  penalty  or  punishment,  given  to  the  party  injured.  In  many 
civil  actions,  such  as  libel,  slander,  seduction,  etc.,  the  wrong  done 
to  the  plaintiff  is  incapable  of  being  measured  by  a  money  standard; 
and  the  damages  assessed  depend  on  the  circumstances,  showing  the 
degree  of  moral  turpitude  or  atrocity  of  the  defendant's  conduct,  and 
may  properly  be  termed  exemplary  or  vindictive  rather  than  com- 
pensatory. 

In  actions  of  trespass,  where  the  injury  has  been  wanton  and  ma- 
licious, or  gross  and  outrageous,  courts  permit  juries  to  add  to  the 
measured  compensation  of  the  plaintiff  which  he  would  have  been 
entitled  to  recover,  had  the  injury  been  inflicted  without  design  or  in- 
tention, something  farther  by  way  of  punishment  or  example,  which 
has  sometimes  been  called  "smart  money.*'  This  has  been  always 
left  to  the  discretion  of  the  jury,  as  the  degree  of  punishment  to  be 
thus  inflicted  must  depend  on  the  peculiar  circumstances  of  each  case. 
It  must  be  evident,  also,  that  as  it  depends  upon  the  degree  of  malice, 
wantonness,  oppression,  or  outrage  of  the  defendant's  conduct,  the 
punishment  of  his  delinquency  cannot  be  measured  by  the  expenses 
of  the  plaintiff  in  prosecuting  his  suit.  It  is  true  that  damages,  as- 
sessed by  way  of  example,  may  thus  indirectly  compensate  the  plain- 
tiff for  money  expended  in  counsel  fees ;  but  the  amount  of  these 
fees  cannot  be  taken  as  the  measure  of  punishment  or  a  necessary 
element  in  its  infliction. 

This  doctrine  about  the  right  of  the  jury  to  include  in  their  ver- 
dict, in  certain  cases,  a  sum  sufficient  to  indemnify  the  plaintiff  for 
counsel-fees  and  other  real  or  supposed  expenses  over  and  above  taxed 
costs,  seems  to  have  been  borrowed  from  the  civil  law  and  the  practice 

tion;  but  that  is  not  tbe  case  in  ejectment."  See,  also,  Tullidge  v.  Wade, 
3  Wils.  18  (1769) ;  Rollers  v.  Spence,  13  Mees.  &  W.  571  (1S44) ;  Gray  v.  Grant, 
Trin.  4  Geo.  Ill  (1764);  Perkin  v.  Proctor,  2  Wils.  386  (1768);  Bruce  v.  Raw- 
lins, 3  Wils.  61  (1770);  Tillotson  v.  Cheetham,  3  Johns.  (N.  Y.)  56,  3  Am. 
Dec.  459  (1808) :  Woert  v.  Jenkins,  14  Johns.  (N.  Y.)  352  (1817). 
3  Part  of  the  opinion  is  omitted. 


Ch.  3)  EXEMPLARY  DAMAGES.  89 

of  the  courts  of  admiralty.  At  first  by  the  common  law,  no  costs  were 
awarded  to  either  party,  eo  nomine.  If  tlie  plaintiff  failed  to  recover 
he  was  amerced  pro  falso  clamore.  If  he  recovered  judgment,  the 
defendant  was  in  misericordia  for  his  unjust  detention  of  the  plain- 
tiff's debt,  and  was  not  therefore  punished  with  the  expensa  litis  un- 
der that  title.  But  this  being  considered  a  great  hardship,  the  stat- 
ute of  Gloucester  (6  Edw.  I,  c.  1)  was  passed,  which  gave  costs  in 
all  cases  when  the  plaintiff  recovered  damages.  This  was  the  origin 
of  costs  de  incremento;  for  when  the  damages  were  found  by  the  ju- 
ry, the  judges  held  themselves  obliged  to  tax  the  moderate  fees  of 
counsel  and  attorneys  that  attended  the  cause.  See  Bac.  Abr.  tit. 
"Costs." 

Under  the  provisions  of  this  statute  every  court  of  common  law  has 
an  established  system  of  costs,  which  are  allowed  to  the  successful 
party  by  way  of  amends  for  his  expense  and  trouble  in  prosecuting  his 
suit.  It  is  true,  no  doubt,  and  is  especially  so  in  this  country  (where 
the  Legislatures  of  the  different  states  have  so  much  reduced  attor- 
neys' fee  bills,  and  refused  to  allow  the  honorarium  paid  to  counsel 
to  be  exacted  from  the  losing  party),  that  the  legal  taxed  costs  are 
far  below  the  real  expenses  incurred  by  the  litigant ;  yet  it  is  all  the 
law  allows  as  expensa  litis.  If  the  jury  may,  "if  they  see  fit,"  allow 
counsel  fees  and  expenses  as  a  part  of  the  actual  damages  incurred  by 
the  plaintiff,  and  then  the  court  add  legal  costs  de  incremento,  the  de- 
fendants may  be  truly  said  to  be  in  misericordia,  being  at  the  mercy 
both  of  court  and  jury.  Neither  the  common  law,  nor  the  statute  law 
of  any  state,  so  far  as  we  are  informed,  has  invested  the  jury  with 
this  power  or  privilege.  It  hi<  been  sometimes  exercised  by  the  per- 
mission of  courts,  but  its  results  have  not  been  such  as  to  recommend 
it  for  general  adoption  either  by  courts  or  Legislatures. 

The  only  instance  where  this  power  of  increasing  the  "actual  dam- 
ages" is  given  by  statute  is  in  the  patent  laws  of  the  United  States. 
But  there  it  is  given  to  the  court  and  not  to  the  jury.  The  jury  must 
find  the  "actual  damages"  incurred  by  the  plaintiff  at  the  time  his  suit 
was  brought;  and  if,  in  the  opinion  of  the  court,  the  defendant  has 
not  acted  in  good  faith,  or  has  been  stubbornly  litigious,  or  has  caused 
unnecessary  expense  and  trouble  to  the  plaintiff',  the  court  may  in- 
crease the  amoimt  of  the  verdict,  to  the  extent  of  trebling  it.  But 
this  penalty  cannot,  and  ought  not,  to  be  twice  inflicted ;  first,  at  the 
discretion  of  the  jury,  and  again  at  the  discretion  of  the  court.  The 
expenses  of  the  defendant  over  and  above  taxed  costs  are  usually  as 
great  as  those  of  plaintiff;  and  yet  neither  court  nor  jury  can  compen- 
sate him,  if  the  verdict  and  judgment  be  in  his  favor,  or  amerce  the 
plaintiff  pro  falso  clamore  beyond  tax  costs.  Where  such  a  rule  of 
law  exists  allowing  the  jury  to  find  costs  de  incremento  in  the  shape  of 
counsel  fees,  or  the  equally  indefinite  and  unknown  quantity  denomi- 
nated (in  plaintiff's  prayer  for  instruction)  "&c.,"  they  should  be  per- 
mitted to  do  the  same  for  the  defendant  where  he  succeeds  in  his  de- 


90  DISCRETIONARY  DAMAGES.  (Part   4 

fence,  otherwise  the  parties  are  not  suffered  to  contend  in  an  equal 
field.  Besides,  in  actions  of  debt,  covenant,  and  assumpsit,  where  the 
plaintiff  always  recovers  his  actual  damages,  he  can  recover  but  legal 
costs  as  compensation  for  his  expenditure  in  the  suit,  and  as  punish- 
ment of  defendant  for  his  unjust  detention  of  the  debt;  and  it  is  a 
moral  offence  of  no  higher  order,  to  refuse  to  pay  the  price  of  a  patent 
or  the  damages  for  a  trespass,  which  is  not  wilful  or  malicious,  than 
to  refuse  the  payment  of  a  just  debt.  There  is  no  reason,  therefore, 
why  the  law  should  give  the  plaintiff  such  an  advantage  over  the  de- 
fendant in  one  case,  and  refuse  it  in  the  other.  See  Barnard  v.  Poor, 
21  Pick.  (Mass.)  383;  and  Lincoln  v.  Saratoga  Railroad,  23  Wend. 
(N.  Y.)  435.     *     *     ** 


FLANAGAN  v.  WOMACK. 
(Supreme  Court  of  Texas,  18S0.     54  Tex.  45.) 

Bonner,  J."*  This  is  a  civil  action  for  damages,  actual  and  exem- 
plary, brought  by  appellant  Flanagan  against  Womack  for  an  alleged 
assault  and  battery  committed  upon  him.  *  *  *  There  was  a  ver- 
dict and  judgment  of  one  dollar  actual  damages  against  defendant. 

4  Holt,  J.,  in  Louisville  &  N.  R.  Co.  v.  Ballard,  85  Ky.  307,  3  S.  W.  530,  7 
Am.  St.  Rep.  GOO  (1887): 

"It  was  improper,  however,  to  instruct  the  jury,  as  was  in  effect  done  in 
this  instance,  that  'indecorous'  conduct  alone  is  sufficient  to  authorize  ex- 
emplary damages.  The  term  is  too  broad.  It  may  embrace  conduct  which 
would  not  authorize  their  infliction.  It  is  true  that  the  peculiar  element 
which,  entering  into  the  commission  of  wrongful  acts,  justifies  the  imposition 
of  such  damages,  cannot  be  so  definitely  defined,  perhaps,  as  to  meet  every 
case  that  may  arise.  It  has  been  said  that  they  are  allowable  where  the 
wrongful  act  has  been  accompanied  with  'circumstances  of  aggravation'  (Chiles 
v.  Di-ake,  2  Mete.  [Ky.]  140,  74  Am.  Dec.  406) ;  or  if  a  trespass  be  'committed 
in  a  high-handed  and  threatening  manner'  (Jennings  v.  Maddox,  8  B.  Mon. 
430) ;  or  where  the  tort  is  'accompanied  by  oppression,  fraud,  malice,  or  neg- 
ligence so  great  as  to  raise  a  presumption  of  malice'  (Parker  v.  Jenkins.  3 
Bush,  587) ;  or,  as  was  said  in  Dawson  v.  Railroad  Co.  [6  Ky.  Law  Rep.  GG8], 
where  the  wrongful  act  is  accompanied  by  'insult,  indignity,  oppression,  or 
inhumanity.' 

"It  would,  however,  be  extending  the  rule  unwarrantably  to  hold  that  they 
could  be  imposed  provided  the  conduct  was  merely  'indecorous.'  This,  as  de- 
fined by  Webster,  and  as  commonly  understood,  means  impolite,  or  a  violation 
of  good  manners  or  proper  breeding.  It  is  broad  enough  to  cover  the  slight- 
est departure  from  the  most  polished  politeness  to  conduct  which  is  vulgar 
and  insulting.  It  does  not  necessarily,  or,  indeed,  generally,  involve  an  in- 
sult. The  latter  assumes  superiority,  and  offends  the  self-respect  of  the 
person  to  whom  it  is  offered,  while  the  former  excites  pity  or  contempt  for 
the  one  guilty  of  it.  A  word  or  act  may  be  both  indecorous  and  insulting,  but 
yet  it  often  lacks  the  essential  elements  of  an  insult. 

"In  the  case  now  under  consideration  the  jury  may  have  believed  it  was 
indecorous  in  the  conductor  not  to  stop  the  train  at  the  platform,  or  not  to 
carry  her  valise  for  her  when  she  was  leaving  the  train,  or  to  let  her  get  off 
between  stations,  although  she  chose  to  do  so  rather  than  suffer  Inconven- 
ience by  being  carried  to  the  next  one,  or  in  merely  telling  her  that  she  could 
walk  back  to  her  station;  yet  none  of  these  things  amounted  to  'insult,  in- 
dignity, oppression,  or  inhumanity.'  " 

5  Part  of  the  opinion  is  omitted. 


Cll.  3)  EXEMPLARY  DAMAGES.  91 

Among  other  defenses,  Womack  pleaded  that  on  indictment  for  the 
same  offense  he  had  been  convicted  and  a  fine  of  $100,  besides  costs 
of  suit,  adjudged  against  him  in  the  county  court,  which  he  had 
paid.  A  demurrer  to  this  plea  was  overruled,  testimony  was  admitted 
to  sustain  it,  and  the  jury  instructed  that  they  might  consider  it  in 
mitigation  but  not  in  bar  of  the  claim  for  exemplary  damages. 

The  doctrine  upon  which  the  learned  judge  below  doubtless  acted 
in  overruling  the  demurrer  and  admitting  the  testimony  has  been  the 
subject  of  great  diversity  of  opinion  and  discussion  among  judges  and 
jurists.  If  it  were  now  an  open  question  in  this  court,  the  individual 
opinion  of  the  writer  would  be  that  it  was  not  well  founded  in  prin- 
ciple, and  that  there  was  error  in  the  judgment  of  the  court. 

It  is  perhaps  due  myself  that  I  very  briefly  give  the  reasons  for  this 
belief. 

The  doctrine  of  exemplary  damages  doubtless  originated  from  those 
cases  in  which  a  sense  of  justice  to  the  injured  party  demanded  that 
more  compensation  should  be  given  him  than  could  be  allowed  by  any 
defined  strict  legal  rule  for  the  measure  of  damages.  Frequently  the 
mere  physical  injury  sustained,  and  which  ordinarily  is  the  test  of  act- 
ual damages,  would  of  itself  be  comparatively  insufficient,  but  the  out- 
rage upon  the  feelings — the  ordinary  test  of  what  is  now  usually  call- 
ed exemplary,  vindictive,  or  punitory  damages — would  be  of  such 
gross  character  or  under  such  indignant  circumstances  as  should  re- 
quire ample  reparation  from  the  offender,  but  which  could  not  be  re- 
ferred to  any  fixed  primary  standard.  Hence,  this  character  of  dam- 
age was,  in  a  great  degree,  necessarily  left  to  the  discretion  of  the 
jury  trying  the  particular  case.  Indulgence  was  extended  by  the  courts 
to  such  verdicts,  as  they  tended  to  prevent  breaches  of  the  peace,  and 
to  encourage,  by  a  resort  to  the  law  of  the  land,  the  settlement  of  diffi- 
culties which  otherwise  might  have  ended  in  personal  conflicts.  To 
this  extent  the  public  also  was  interested. 

This  indirect  result  to  the  public  good  led  some  courts  into  the  er- 
ror of  assuming  as  one  of  the  grounds  why  such  damages  should  be 
allowed  at  the  suit  of  a  private  party  that  it  was  intended  as  a  public 
punishment  to  the  offender,  thus  making  that  an  active  cause  which 
originally  was  but  a  passive  result,  and  in  this  way  converting  private 
recompense  into  public  punishment. 

I  do  not  doubt  the  propriety  of  allowing  full  compensation  to  the 
injured  party  for  both  that  damage  which  can  be  reduced  to  a  reason- 
ably fixed  money  standard,  usually  called  actual  damages,  and  also 
for  that  damage  which  should  be  recovered,  but  which  cannot,  in  the 
nature  of  things,  be  determined  by  any  such  standard,  but  which  must 
be  left  to  the  sound  discretion  of  the  juries  and  courts  of  the  country, 
and  which  are  properly  included  under  what  is  now  called  exemplary 
damages.  Such  damages  have  received  the  approval  of  the  courts  of 
last  resort  of  at  least  twenty-nine  states  of  the  Union,  including  this 


92  DISCRETIONARY  DAMAGES.  (Part   4 

State,  and  of  the  Supreme  Court  of  the  United  Sates.  Field,  Dam.  p. 
23,  note  2. 

The  difficulty  has  arisen  in  adding  an  improper  ground  for  such 
damages, — punishment,  instead  of  recompense;  thus  opening  too  wide 
the  door  for  unreasonable  verdicts  by  juries  in  civil  suits,  there  not 
being  with  us  in  such  cases,  as  under  the  Criminal  Code,  any  limita^ 
tion  upon  the  amount  of  the  verdict  which  may  be  found. 

Punishment  for  offenses  should  be  inflicted  only  by  public  prosecu^ 
tion  in  due  course  of  the  law  of  the  land,  under  those  safeguards 
which  are  "rooted  and  grounded  in  the  maxims  of  the  common  law, 
and  guarantied  by  the  constitution  of  our  political  government." 

If  such  damages  are  allowed  as  recompense  only,  and  not  as  punish- 
ment, then  we  avoid  the  illegality  and  hardship  of  inflicting  a  double 
punishment  for  the  same  offense. 

The  criminal  prosecution  is  a  suit  between  the  government  and  the 
defendant,  to  which  the  plaintiff  in  the  civil  action  is  not  a  party,  and 
in  which  he  has  no  voice.  If,  in  the  opinion  of  the  jury  trying  the  civil 
action,  the  conviction  and  fine  in  the  criminal  prosecution  was  a  suffi- 
cient punishment,  then  the  plaintiff,  so  far  as  regards  his  exemplary 
damage  as  a  recompense,  has  been  deprived  of  his  just  rights  without 
ever  having  had  his  day  in  court. 

The  only  consistent  theory  upon  which  the  judgment  in  the  crimi- 
nal prosecution  can  be  admitted  in  mitigation  of  damages  in  the  civil 
action  is  that  by  a  fiction  of  the  law  the  plaintiff"  in  the  latter  represents 
the  public,  and  that  to  this  extent  the  two  suits  are  considered  as  be- 
tween the  same  parties,  and  that  the  fine  in  the  one  should  decrease 
the  amount  of  the  judgment  in  the  other, — a  fiction  which,  as  above 
shown,  may  work  a  great  hardship  on  the  plaintiff. 

This  testimony  is  admitted  solely  for  the  benefit  of  the  defendant, 
not  the  public,  and  it  is  not  perceived  on  principle,  if  such  evidence 
can  be  admitted  in  mitigation,  why  it  should  not  also  be  admitted  in 
bar;  or  why  it  would  not  logically  follow  that,  if  the  defendant  had 
been  acquitted  instead  of  having  been  convicted,  he  could  not  plead 
this  former  acquittal  in  bar;  or,  as  the  rights  of  the  parties  should 
be  mutual,  why,  if  the  civil  suit  had  been  first  tried  and  judgment  ren- 
dered against  the  defendant,  this  should  not  be  a  mitigation  or  bar  to 
the  criminal  prosecution.  That  such  should  be  the  rule  in  mitigation, 
if  not  in  bar,  in  those  tribunals  where  the  injured  party,  as  private 
prosecutor,  receives  part  of  the  fine,  would  seem  proper;  but  to  permit 
it  in  this  state,  where  the  fine  is  paid  to  the  government  and  not  to  the 
prosecutor,  would  in  many  cases  virtually  supersede  the  criminal  law. 

Thus  considered,  the  testimony  of  the  former  conviction  and  fine 
would  not  have  been  admissible.     *     *     * 

Whatever  may  be  my  individual  opinion,  however,  I  feel  constrained, 
from  a  long  and  uniform  course  of  decisions  on  this  subject  in  this 
state,  and  for  this  reason  only,  to  concur  with  the  other  members  of 


Ch.  3)  EXEMPLARY  DAMAGES. 


93 


the  court  in  the  opinion  that  the  court  below  did  not  err  in  overruling 
the  demurrer  and  admitting  the  evidence.     *     ♦     * 

If  exemplary  damages  are  allowed  as  punishment  and  not  strictly 
as  compensation,  then  all  the  facts  and  circumstances  of  the  case  which 
would  enable  the  jury  to  act  advisedly  in  inflicting  the  appropriate 
punishment  would  be  proper  for  their  consideration.  In  this  view  the 
assigned  error  was  not  well  taken.  Field,  Dam.  §§  89-91,  121-123, 
and  authorities  cited.     *     *     * 

That  much  of  the  charge  by  which  the  jury  were  instructed  that  ex- 
emplary damages  could  not  be  recovered  without  proof  of  actual  or 
compensatory  damages  is  assigned  as  error.  The  proposition  contained 
in  the  charge  is  believed  to  be  correct.     *     *     * 


SPOKANE  TRUCK  &  DRAY  CO.  v.  HOEFER  et  ux. 

{Supreme  Court  of  Washington,  1891.    2  Wash.  45,  25  Pac.  1072,  11  L.  R.  A. 
689,  26  Am.  St  Rep.  S42.) 

Dunbar,  J.*  The  plaintiff  Mina  Hoefer  had  her  arm  broken,  and 
was  otherwise  injured,  by  the  falling  of  a  safe,  which  was  being  hoist- 
ed by  the  defendant  into  a  five-story  brick  building,  known  as  the  "Ea- 
gle Block,"  in  the  city  of  Spokane  Falls.  *  *  *  Suit  was  brought 
against  the  defendant,  alleging  damages  in  the  sum  of  $5,000.  The 
case  was  tried  by  a  jury,  and  a  verdict  rendered  for  plaintiffs  for  $3,- 
500,  and  a  judgment  rendered  for  the  same,  from  which  judgment  an 
appeal  was  taken  to  this  court. 

The  defendant  assigns  as  error  the  following  instructions  to  the 
jury,  given  by  the  court  upon  its  own  motion:  "Furthermore,  gen- 
tlemen, the  plaintiffs  claim  in  this  action  that  the  defendant  was  not 
only  guilty  of  negligence,  by  reason  of  which  the  plaintiff  was  dam- 
aged, but  was  guilty  of  gross  negligence,  and,  in  case  you  find  they 
were  guilty  of  gross  negligence,  a  different  rule  of  damages  applies 
to  the  case."  "  'Gross  negligence'  means  a  wanton  and  reckless  dis- 
regard of  the  rights  of  other  persons  taken  into  consideration  with  the 
facts  in  the  case;  and,  in  case  you  find  that  it  was,  then,  in  addition 
to  the  actual  damages  which  you  may  find  for  plaintiff,  you  may  as- 
sess a  sum  which  the  law  calls  'exemplary  damages.'  That  means  a 
damage  to  deter  others  from  being  wanton  and  reckless  of  the  rights 
of  others."     *     *     * 

We  next  pass  to  the  instruction  of  the  court  both  upon  its  own  mo- 
tion and  upon  the  motion  of  the  plaintiffs  in  relation  to  punitive  dam- 
ages. This  is  a  question  which  has  engaged  the  earnest  attention  of 
courts  and  authors.  A  careful  investigation  of  the  discussion  of  this 
subject  by  such  noted  authors  as  Greenleaf,  Sedgwick,  and  Parsons, 
and  also  other  eminent  text-writers,  and  by  numerous  courts,  shows  a 

•  Part  of  the  opinion  is  omitted. 


94  DISCRETIONARY  DAMAGES.  (Part   4 

wonderful  diversity  of  opinion  on  this  interesting  subject.  The  weight 
of  authority,  especially  considering  the  older  cases,  seems  to  be  in 
favor  of  the  doctrine  of  punitive  damages,  but  the  opposite  doctrine 
has  received  the  support  and  advocacy  of  many  modern  writers,  and  , 
the  judicial  sanction  of  many  modern  courts ;  while  other  courts  have 
frankly  stated  their  repugnance  to  the  doctrine,  yet  considered  them- 
selves bound,  by  former  decisions  in  their  respective  states,  to  still 
maintain  it,  appealing  to  the  Legislature  to  relieve  them  from  what 
they  believe  to  be  a  pernicious  practice.  In  this  state  it  is  a  new  ques- 
tion, and  the  court  approaches  its  investigation  untrammeled  by  former 
decisions,  free  to  accept  the  reasoning  which  most  strongly  appeals  to 
its  judgment,  and  to  adopt  the  rule  which,  in  its  opinion,  will  simplify 
judicial  proceedings,  and  lead  to  the  least  embarrassing  complications 
in  the  administration  of  the  law,  and  the  determination  of  rights 
thereunder.  And  this  desired  ultimatum,  we  think,  will  best  be  at- 
tained by  adopting  the  rule  laid  down  by  Mr.  Greenleaf  (volume  2,  § 
253)  that  "damages  are  given  as  a  compensation  or  satisfaction  to  the 
plaintiff  for  an  injury  actually  sustained  by  him  from  the  defendant. 
They  should  be  precisely  commensurate  with  the  injury,  neither  more 
nor  less ;  and  this  whether  it  be  to  his  person  or  his  estate" — although 
it  is  stoutly  maintained  by  so  eminent  an  author  as  Mr.  Sedgwick  that 
this  definition  is  too  limited,  and  that,  ftwherever  the  elements  of  fraud, 
malice,  gross  negligence,  or  oppression  mingle  in  the  controversy,  the 
law,  instead  of  adhering  to  the  system  or  even  the  language  of  compen- 
sation, adopts  a  wholly  different  rule.  (^It  permits  the  jury  to  give  what 
it  terms  'punitive,'  'vindictive,'  or  'exemplary'  damages ;  in  other  words,; 
blends  together  the  interests  of  society  and  of  the  aggrieved  individual, 
and  gives  damages  not  only  to  recompense  the  sufferer,  but  to  punish 
the  offender."!  1  Sedg.  Dam.  p.  38;  Id.  (7th  Ed.)  p.  53.  It  seems  to 
us  that  there  are  many  valid  objections  to  interjecting  into  a  purely 
civil  action  the  elements  of  a  criminal  trial,  intermingling  into  a  sort 
of  a  medley  or  legal  jumble  two  distinct  systems  of  judicial  procedure. 
While  the  defendant  is  tried  for  a  crime,  and  damages  awarded  on 
the  theory  that  he  has  been  proven  guilty  of  a  crime,  many  of  the  time- 
honored  rules  governing  the  trial  of  criminal  actions,  and  of  the  rights 
that  have  been  secured  to  defendants  in  criminal  actions  "from  the 
time  whereof  the  memory  of  man  runneth  not  to  the  contrary,"  are 
absolutely  ignored.  Under  this  procedure  the  doctrine  of  presumption 
of  innocence,  until  proven  guilty  beyond  a  reasonable  doubt,  finds  no 
lodgment  in  the  charge  of  the  court,  but  is  supplanted  by  the  rule  in 
civil  actions  of  a  preponderance  of  testimony.  The  fallacy  and  unfair- 
ness of  the  position  is  made  manifest  when  it  is  noted  that  a  person 
can  be  convicted  of  a  crime,  the  penalty  for  which  is  unlimited,  save 
in  the  uncertain  judgment  of  the  jury,  and  fined  to  this  unlimited  ex- 
tent for  the  benefit  of  an  individual  who  has  already  been  fully  com- 
pensated in  damages,  on  a  smaller  weight  of  testimony  than  he  can  be 


Ch.  3)  EXEMPLARY  DAMAGES.  95 

in  a  criminal  action  proper,  brought  for  the  benefit  or  protection  of 
the  state,  where  the  amount  of  the  fine  is  fixed  and  Hmited  by  law  ; 
and,  in  addition  to  this,  he  may  be  compelled  to  testify  against  himself, 
and  is  denied  the  right  to  meet  the  witnesses  against  him  face  to  face 
under  the  practice  in  civil  actions  of  admitting  depositions  in  evidence. 
Exclusive  of  punitive  damages,  the  measure  of  daniages  as  uniformly 
adopted  by  the  courts  and  recognized  by  the  law  is  exceedingly  liberal 
towards  the  injured  party.    There  is  nothing  stinted  in  the  rule  of  coni- 
pensation.     The  party  is  fully  compensated  for  all  the  injury  done  his 
person  or  his  property,  and  for  all  losses  which  he  may  sustain  by  rea- 
son of  the  injury,  in  addition  to  recompense  for  physical  pain,  if  any 
has  been  inflicted.    But  it  does  not  stop  here;   it  enters  the  domain  of 
feeling,  tenderly  inquires  into  his  mental  sufferings,  and  pays  him  for 
any  anguish  of  mind  that  he  may  have  experienced.     Indignities  re- 
ceived, "insults  borne,  sense  of  shame  or  humiliation  endured,  lacera- 
tion of  feelings,  disfiguration,  loss  of  reputation  or  social  position,  loss 
of  honor,  impairment  of  credit,  and  every  actual  loss,  and  some  which 
frequently  border  on  the  imaginary,  are  paid  for  under  the  rule  of 
compensatory  damages.     The  plaintiff  is  made  entirely  whole.     The 
bond  has  been  paid  in  full.     Surely  the  public  can  have  no  interest  in 
exacting  the  pound   of  flesh.     Ordinarily  the   administration  of   the 
laws  is  divided  into  two  distinct  jurisdictions,  the  civil  and  the  crim- 
inal, each  governed  by  rules  of  procedure,  and  by  rules  governing  the 
admission  and  weight  of  testimony   different   and   distinct   from  the 
other.    The  province  of  the  civil  court  is,  as  its  name  indicates,  to  in- 
vestigate civil  rights;    there  its  jurisdiction  ends,  or  ought  to  end; 
while  the  province  of  the  criminal  court  is,  as  its  name  imports,  to  in- 
vestigate and  punish  crime  and  restrain  its  commission.     And  it  is  to 
the  criminal,  and  not  the  civil,  jurisdiction  that  society  looks  for  its 
protection  against  criminals.    The  object  of  punishment  is  not  to  de- 
ter the  criminal  from  again  perpetrating  the  crime  on  the  particular 
individual  injured,  but  for  the  protection  of  society  at  large;    and  as 
the  state  is  at  the  expense  of  restraining  and  controlling  its  criminals, 
and  as  fines  are  imposed  for  the  double  purpose  of  restraining  the  of- 
fender, and  of  reimbursing  the  state  for  its  outlay  in  protecting  its 
citizens  from  criminals,  we  are  at  a  loss  to  know  by  what  process  of 
reasoning,  either  legal  or  ethical,  the  conclusion  is  reached  that  a  plain- 
tiff in  a  civil  action,  under  a  complaint  which  only  asks  for  compen- 
sation for  injuries  received,  is  allowed  to  appropriate  money  which 
is  supposed  to  be  paid  for  the  benefit  of  the  state.     It  is  to  be  pre- 
sumed that  the  state  has  fully  protected  its  own  interests,  or  as  fully 
at  least  as  they  could  be  protected  by  laws,  when  it  provides  for  the 
punishment  of  crime  in  its  criminal  statutes,  and  fixes  the  fine  at  a 
sum  which  it  deems  commensurate  with  the  crime  designated;   hence, 
punitive  damages  cannot  be  allowed  on  the  theory  that  it  is  for  the  ben- 
efit of  society  at  large,  but  must  logically  be  allowed  on  the  theory 
that  they  are  for  the  sole  benefit  of  the  plaintiff  who  has  already  been 


96  DISCRETIONARY  DAMAGES.  (Part   4 

fully  compensated,  a  theory  which  is  repugnant  to  every  sense  of  jus- 
tice. 

Again,  while  jurors  should  be  the  judges  of  the  character  and  weight 
of  testimony,  that  judgment  should  be  exercised  under  some  rule,  and 
be  amenable  to  some  law,  so  that  an  abuse  of  discretion  could  be  ascer- 
tained and  corrected;  but,  under  the  doctrine  of  punitive  damages, 
where  the  whole  question  is  left  to  the  unguided  judgment  of  the  jury, 
and  where,  under  the  very  nature  of  the  doctrine,  no  measure  of 
damages  can  be  stated,  and  hence  no  limits  compelled,  where  there 
are  no  special  findings  provided  for,  it  would  not  be  often  that  a  court 
would  be  warranted  in  interfering  with  a  verdict,  if  indeed  it  could 
do  so  at  all,  if  the  verdict  fell  within  the  amount  asked  as  compensa- 
tory damages.  Take  the  case  at  bar  for  instance,  and  the  court  has  no 
way  of  ascertaining  whether  the  jury  found  that  the  plaintiff  had  ac- 
tually been  damaged  to  the  full  amount  of  $2,500,  or  whether  they 
found  her  actual  damages  to  be  $500,  and  assessed  the  other  $2,000 
by  way  of  punishment.  It  seems  to  us  that  a  practice  which  leads  to 
so  much  confusion  and  uncertainty  in  the  administration  of  the  law, 
and  that  is  always  liable  to  lead  to  injustice,  the  correction  of  which 
is  impracticable,  cannot  be  too  speedily  eradicated  from  our  system 
of  jurisprudence.  In  this  connection,  we  quote  approvingly  the  lan- 
guage of  the  Supreme  Court  of  Indiana  in  Stewart  v.  Maddox,  63  Ind. 
51.  Says  the  court :  "The  doctrine  of  exemplary  or  punitive  damages 
rests  upon  a  very  uncertain  and  unstable  basis.  It  is  almost  equivalent 
to  giving  the  jury  the  power  to  make  the  law  of  damages  in  each  case; 
and  in  a  case  where  the  defendant  is  a  commanding,  popular,  influen- 
tial person,  and  the  plaintiff  of  an  opposite  character,  and  the  local 
and  temporary  excitement  of  the  time  happens  to  be  in  favor  of  the 
defendant,  the  jury  is  apt  to  be  reluctant  in  giving-  even  pecuniary 
compensation,  without  adding  anything  by  way  of  exemplary  or  puni- 
tive damages;  while,  in  a  case  in  which  the  character  of  the  parties 
and  the  circumstances  are  reversed,  the  jury  will  be  liable  to  push 
their  powers  to  an  unwarranted  and  unconscionable  extent,  dangerous 
to  justice  and  the  security  of  settled  rights."  Says  the  court  in  Mur- 
phy V.  Hobbs,  7  Colo.  541,  5  Pac.  119,  49  Am.  Rep.  366 :  "The  reflect- 
ing lawyer  is  naturally  curious  to  account  for  this  'heresy'  or  'deform- 
ity,' as  it  has  been  termed.  Able  and  searching  investigations  made 
by  both  jurists  and  writers  disclose  the  following  facts  concerning  it, 
viz. :  That  it  was  entirely  unknown  to  the  civil  law ;  that  it  never  ob- 
tained a  foothold  in  Scotland ;  that  it  finds  no  real  sanction  in  the 
writings  of  Blackstone,  Hammond,  Comyns,  or  Rutherforth;  that  it 
was  not  recognized  in  the  earlier  English  cases ;  that  the  Supreme 
Courts  of  New  Hampshire,  Massachusetts,  Indiana,  Iowa,  Nebraska, 
Michigan,  and  Georgia  have  rejected  it  in  whole  or  in  part;  that  of 
late  other  states  have  falteringly  retained  it  because  committed  so  to 
do;  that  a  few  years  ago  it  was  correctly  said,  'At  last  accounts  the 
Court  of  Queen's  Bench  was  still  sitting  hopelessly  involved  in  the 


-i 


Ch.  3)  EXEMPLARY  DAMAGES,  97 

meshes  of  what  Mr.  Chief  Justice  Quain  declared  to  be  "utterly  in- 
consistent propositions ;" '  and  that  the  rule  is  comparatively  modern, 
resulting  in  all  probability  from  a  misconception  of  impassioned  lan- 
guage and  inaccurate  expressions  used  by  judges  in  some  of  the  earlier 
English  cases."  And  in  support  of  this  theory  the  Colorado  court 
quotes  Air.  Justice  Foster  in  Fay  v.  Parker,  53  N.  H.  342,  16  Am.  Rep. 
270,  who  concludes  a  discussion  of  the  expression  "smart  money"  as 
used  by  Grotius  and  jurists  contemporary  with  that  author,  in  the  fol- 
lowing language :  "It  is  interesting,  as  well  as  instructive,  to  observe 
that  one  hundred  and  twenty  years  ago  the  term  'smart  money'  was 
employed  in  a  manner  entirely  different  from  the  modern  signification 
which  it  has  obtained,  being  then  used  as  indicating  compensation  for 
smarts  of  the  injured  person,  and  not,  as  now,  money  required  by  way 
of  punishment,  and  to  make  the  wrongdoer  smart."  Some  courts 
have  held  that  it  was  in  violation  of  the  constitutional  guaranty  "that 
no  person  should  be  twice  put  in  jeopardy  for  the  same  offense,"  where 
the  criminal  code  provided  a  punishment  for  the  same  offense,  and 
some  have  restricted  or  limited  its  abrogation  to  cases  where  the  act 
charged  to  have  been  committed  was  made  punishable  by  law ;  but, 
without  expressing  any  opinion  on  the  constitutional  question,  we  be- 
lieve that  the  doctrine  of  punitive  damages  is  unsound  in  principle, 
and  unfair  and  dangerous  in  practice,  and  that  the  instruction  of  the 
court  on  the  subject  of  punitive  damages  was  erroneous.  With  this 
view  of  the  law  it  is  not  necessary  to  examine  the  further  objection 
urged  by  defendant,  "that  this  was  not  a  proper  case  for  the  applica- 
tion of  the  doctrine  of  punitive  damages."     *     *     *  t 


SMITH  v.  BAGWELL. 
(Supreme  Court  of  Florida,  1SS2.    19  Fla.  117,  45  Am.  Rep.  12.) 

Van  ValkenburgHj  J.*  This  was  an  action  brought  by  Bagwell 
against  Smith  for  assault  and  battery.  The  cause  was  tried  at  the 
Duval  circuit  in  May,  1883,  and  the  jury  found  for  the  plaintiff  in  the 
sum  fif  $300  damages,  besides  costs.  The  defendant  moved  for  a  new 
trial,  which  was  denied.  He  then  brought  his  appeal  from  the  judg- 
ment to  this  court.     *     *     * 

The  last  error  assigned  is  that  the  court  refused  to  charge,  "that  in 
actions  for  damages  for  torts,  also  punishable  criminally,  punitive  or 
exemplary  damages  are  not  recoverable."    The  court  charged  the  jury 

7  Where  the  jury  may,  it  is  not  required  to,  jrive  exemplary  damages,  even 
though  the  facts  jusrifv  the  allowance.  Robinson  v.  Sniiorior  R.  T.  Co.,  94 
Wis.  34,-),  08  N.  W.  901,  "^4  L.  R,  A.  205.  59  Am.  St.  Rep.  897  (1890). 

As  to  a  child's  resiK>nsibility  for  exemplary  damages,  see  article  in  38  Am. 
Law  Rev.  380. 

8  Part  of  the  opinion  is  omitted. 

Gilb.Dam.— 7 


98  DISCRETIONARY  DAMAGES.  (Part   4 

upon  the  question  of  damages  as  follows:  "If  you  find  from  the 
evidence  that  the  defendant  did  commit  assault  and  battery  as  alleged 
in  the  declaration,  you  may,  in  measuring  the  amount  of  damages,  es- 
timate the  loss  of  time  and  labor  from  the  time  the  assault  and  bat- 
tery was  committed,  and  the  value  of  his  services  as  proved;  also  ex- 
penses incurred  for  medical  and  surgical  attention,  diminished  capacity 
to  work  at  his  trade  arising  from  injuries  received  by  said  assault 
and  battery;  and  you  may  give  him  such  compensatory  damages  in 
addition  for  the  bodily  pains  and  suffering  arising  from  such  injury  as 
you  may  think  the  circumstances  and  the  evidence  will  warrant."  We 
see  nothing  wrong  in  this  charge  of  the  court.  The  damages  which 
the  jury  were  to  assess  against  the  plaintiff  in  case  they  found  from 
the  evidence  that  he  had  committed  the  battery  alleged  in  the  declara- 
tion were  compensatory — such  as  would  compensate  him  for  his  ex- 
penses, time,  and  for  bodily  pains  arising  from  the  infliction  of  the 
injury.  There  was  no  intimation  upon  the  part  of  the  court  in  this 
charge  that  the  jury  could  or  should  give  punitive  damages  or  dam- 
ages in  the  nature  of  a  punishment.  ( There  is  nothing  said  whereby 
the  jury  could  possibly  be  induced  to  take  into  consideration  the  malice 
of  the  plaintiff,  the  personal  indignity,  the  wounded  feelings  or  pub- 
lic example — all  of  which  enter  into  punitive  damages)  The  evidence 
shows  that  defendant  committed  an  aggravated  battery  upon  the  plain- 
tiff; that  the  defendant  struck  him  several  times  over  the  head  with 
an  oak  wood  wagon  spoke  about  two  feet  long;  that  from  the  effects 
of  such  beating  he  was  laid  up  for  two  months ;  that  plaintiff  was  a 
wheelwright;  that  a  good  wheelwright  might  get  from  $2.50  to  $3 
per  day ;  that  he  still  suffered  from  the  blows  he  received  on  his  arm 
and  head.  The  surgeon  who  attended  plaintiff  testified  that  he  found 
him  suffering  from  scalp  wounds  and  a  bruised  arm,  caused  by  blows ; 
that  he  treated  the  wounds  in  the  head  by  adhesive  plaster.  One  of 
the  wounds  he  sewed  up.  The  arm  was  badly  bruised.  Erysipelas 
followed,  which  gave  him  trouble.  This  is  very  often  the  result  of 
blows  on  the  head.  He  attended  him  for  two  weeks  and  his  bill  was 
$30.  Upon  this  evidence  the  jury,  after  consideration,  and  after  hear- 
ing and  seeing  witnesses  and  the  parties,  rendered  their  verdict. 

The  defendant's  counsel  insists  that  the  court  erred  in  not  charg- 
ing the  jury  that  punitive  or  exemplary  damages  were  not  recover- 
able. Whether  such  instructions  were  or  were  not  given  in  this  case 
under  the  circumstances  attending  it,  and  the  charge  given  as  above 
quoted,  is  of  no  consequence.  The  jury  evidently  found  only  com- 
pensatory damages;  that  is,  "loss  of  time  and  labor  from  the  time 
the  assault  and  battery  was  committed,  and  the  value  of  his  services 
as  proved;  also  expenses  incurred  for  medical  and  surgical  attention, 
diminished  capacity  to  work  at  his  trade  arising  from  injuries  received 
by  said  assault  and  battery,*^  and  "compensatory  damages  for  the 
bodily  pains  and  suffering  arising  from  such  injury." 

Bodily  pain  and  suffering  is  a  proper  item  of  damages  in  such  cases. 


Ch.  3)  EXEMPLARY   DAMAGES.  99 

"Nor  is  the  estimate  necessarily  limited  to  the  suffering  which  is  past 
where  the  proof  renders  it  reasonably  certain  that  future  pain  and 
suffering-  is  inevitable.  In  estimating  the  pecuniary  loss  in  such  cases 
all  the  consequences  of  the  injury,  future  as  well  as  past,  are  to  be 
taken  into  consideration;  and  there  seems  to  be  no  reason  why  a  dif- 
ferent rule  should  prevail  in  respect  to  bodily  pain  and  suffering." 
Curtis  V.  Railroad  Co.,  18  N.  Y.  534,  75  Am.  Dec.  258 ;  Id.,  20  Barb. 
(N.  Y.)  282;  Ransom  v.  Railroad,  15  N.  Y.  415. 

Compensatory  damages  are  such  as  arise  from  actual  and  indirect 
pecuniary  loss,  mental  suffering,  value  of  time,  actual  expenses;  and 
to  these  may  be  added  bodily  pain  and  suffering.  Exemplary,  vindic- 
tive, or  punitory  damages  are  such  as  blend  together  the  interests  of 
society  and  of  the  aggrieved  individual,  and  are  not  only  a  recompense 
to  the  sufferer,  but  a  punishment  to  the  offender  and  an  example  to 
the  community. 

In  this  case  the  defendant  was  liable  to  be  punished  criminally  for 
the  assault  and  battery  committed  upon  the  plaintiff.  Whether  he  was 
so  punished  by  indictment  and  trial  or  not,  we  are  not  informed  by 
anything  in  the  record.  The  counsel  for  defendant  below  insists  that 
to  allow  punitive  or  exemplary  damages  in  an  action  of  this  character 
would  be  in  contravention  of  the  Constitution,  which  provides  that  no 
person  shall  be  put  twice  in  jeopardy  for  the  same  offense.  We  are 
aware  that  the  rule  in  regard  to  such  damages  is  different  in  the  dif- 
ferent states  of  this  country,  and  that  whether  they  can  be  legally 
awarded  in  any  case  is  a  question  about  which  different  and  conflicting 
opinions  have  prevailed.  In  the  case  of  Chiles  v.  Drake,  2  Mete.  (Ky.) 
146,  74  Am.  Dec.  406,  Chief  Justice  Simpson,  speaking  for  the  court, 
says:  "It  will  hardly  be  contended  that  a  plaintiff  cannot  recover 
vindictive  darnages  in  an  action  for  an  assault  and  battery  committed 
with  circumstances  of  aggravation,  although  the  defendant  might  be 
indicted  for  the  same  offense.  The  recovery  in  the  one  case  is  for 
the  private  injury,  and  in  the  other  the  punishment  is  inflicted  for  the 
public  wrong.  Vindictive  damages  operate,  it  is  true,  by  way  of  pun- 
ishment, but  they  are  allowed  as  compensatory  for  the  private  injury 
complained  of  in  the  action.  They  are  allowed  because  the  injury  has 
been  increased  by  the  manner  it  was  inflicted."  "Every  recovery  for 
a  personal  injury,  with  or  without  vindictive  damages,  operates  in  some 
degree  as  a  punishment,  but  it  is  a  punishment  which  results  from  the 
redress  of  a  private  wrong,  and  does  not  therefore  violate  either  the 
meaning  or  spirit  of  the  Constitution."    Again,  the  court  say : 

"Where  the  element  of  willful  negligence,  malice,  or  oppression  in- 
tervenes, the  law  permits  the  jury  to  give  what  is  termed  punitory, 
vindictive,  or  exemplary  damages;  and  such  damages,  although  giv- 
en to  recompense  the  sufferer,  do  inflict  a  punishment  upon  the  of- 
fender. But  such  is  the  effect  of  every  judgment  for  damages  which 
is  rendered  in  an  action  for  an  injury  to  the  person,  and  there  would 
be  as  much  propriety  in  the  argument  that,  as  damages  in  such  case 


100  DISCRETIONARY  DAMAGES.  (Part   4 

always  operate  as  a  punishment,  the  offender,  if  the  act  is  one  for 
which  he  is  Hable  to  be  indicted,  will  be  thereby  twice  punished  for  the 
same  offense,  as  there  is  that  such  an  effect  is  produced  where  the 
damages  are  increased  and  made  exemplary  on  account  of  the  reckless 
conduct  of  the  offending  party." 

The  case  of  Brown  v,  Swineford,  44  Wis.  282,  28  Am.  Rep.  582,  was 
one  in  which  an  appeal  was  made  to  the  court,  as  in  this  case,  to  ex- 
clude the  rule  of  punitive  or  exemplary  damages  in  actions  of  tort 
punishable  as  crime,  founded  upon  a  clause  in  the  Constitution  of  that 
state  similar  to  our  own,  providing  that  no  person  for  the  same  offense 
shall  be  twice  put  in  jeopardy  of  punishment.  Ryan,  C.  J.,  says :  "It 
would  have  been  no  subject  of  regret  to  the  court  if  the  obligation  of 
the  Constitution  called  upon  it  to  abridge  the  application  of  the  rule. 
But  the  court  is  unable  to  hold  that  the  constitutional  provision  has 
any  controlling  bearing  on  the  question.  The  Constitution  only  re- 
enacts  what  was  the  general,  if  not  literally  universal,  rule  at  common 
law.  See  authorities  collected  in  1  Bish.  Cr.  Law,  §§  980-987.  The 
word  'jeopardy'  is  therefore  used  in  the  Constitution  in  its  defined, 
technical  sense  at  the  common  law.  And  in  this  use  it  is  applied  only 
to  strictly  criminal  prosecutions  by  indictment,  information,  or  other- 
wise. *  *  *  The  whole  purview  of  section  8  plainly  shows  that 
the  putting  in  jeopardy  prohibited  is  confined  to  criminal  prosecutions. 
Indeed,  this  is  manifest  in  the  clause  itself,  which  is  confined  in  the 
same  offense,  used  in  the  same  sense  as  'criminal  offense'  in  the  first 
clause  of  the  section.  Of  course,  the  same  act  may  be  an  offense  (in 
the  sense  of  crime)  against  the  state  and  an  offense  (in  the  sense  of  a 
tort)  against  a  private  person.  It  is  manifest  that  judgment  for  the 
one  is  not  a  bar  to  the  other;  and  it  might  be  difficult  in  principle  to 
hold  a  criminal  conviction  as  a  bar  to  the  recovery  of  punitory  damages 
in  a  civil  action,  and  not  a  bar  to  the  recovery  of  compensatory  dam- 
ages; not  a  bar  to  any  civil  action.  See  Jacks  v.  Bell,  3  Car.  &  P.  31G. 
The  radical  difficulty  in  the  position  of  counsel  appears  to  be  the 
judgment  for  the  criminal  offense  is  for  the  offense  against  the  pub- 
lic; judgment  for  the  tort  is  for  the  offense  against  the  private  suffer- 
er; that,  though  punitory  damages  go  in  the  right  of  the  public,  for 
example,  they  do  not  go  by  way  of  public  punishment,  but  by  way  of 
private  damages,  for  the  act  as  a  tort,  and  not  as  a  crime,  to  the  private 
sufferer,  and  not  to  the  state.  Though  they  are  allowed  beyond  com- 
pensation of  the  private  sufferer,  they  still  go  to  him  for  himself  as 
damages  allowed  to  him  by  law  in  addition  to  his  actual  damages ;  like 
the  double  and  treble  damages  sometimes  allowed  by  statute.  Con- 
sidered as  strictly  punitory,  the  damages  are  for  the  punishment  of 
the  private  tort,  not  of  the  public  crime."     *     *     * 

This  question  has  elicited  much  discussion,  and  the  books  are  full  of 
it.  The  courts  in  some  of  the  states  have  held  to  the  doctrine,  as  con- 
tended for  by  the  counsel  for  the  appellant,  that  in  a  civil  action  for 
a  tort,  punishable  also  criminally,  punitive  or  exemplary  damages  can- 


Ch.  3)  EXEMPLARY  DAMAGES.  101 

not  be  given  by  the  jury;  and  we  have  carefully  examined  all  these 
authorities.  The  current  of  the  decision  is  in  the  contrary  direction, 
and  we  can  but  hold  that  the  court  below  did  not  err  in  refusing  to 
give  to  the  jury  the  instructions  in  this  respect  requested.     *     *     * 

. / 


GODDARD  v.  GRAND  TRUNK  RY.  OF  CANADA. 
(Supreme  Judicial  Court  of  Maine,  1S69.     57  Me.  202,  2  Am.  Rep.  39.) 
Action  against  the  Grand  Trunk  Railway  of  Canada  to   recover 
damages  for  an  assault  made  on  a  passenger  by  a  brakeman  in  de- 
fendant's employment.    Verdict  for  $4,850. 

Walton,  J.®  Two  questions  are  presented  for  our  consideration: 
First,  is  the  common  carrier  of  passengers  responsible  for  the  willful 
misconduct  of  his  servant?  or,  in  other  words,  if  a  passenger  who  has 
done  nothing  to  forfeit  his  right  to  civil  treatment,  is  assaulted  and 
grossly  insulted  by  one  of  the  carrier's  servants,  can  he  look  to  the 
carrier  for  redress?  and,  secondly,  if  he  can,  what  is  the  measure  of 
relief  which  the  law  secures  to  him?  These  are  questions  that  deeply 
concern,  not  only  the  numerous  railroad  and  steamboat  companies  en- 
gaged in  the  transportation  of  passengers,  but  also  the  whole  traveling 
public ;  and  we  have  endeavored  to  give  them  that  consideration  which 
their  great  importance  has  seemed  to  us  to  demand.     *     *   _  * 

It  appears  in  evidence,  that  the  plaintiff  was  a  passenger  in  the  de- 
fendants' railway  car ;  that,  on  request,  he  surrendered  his  ticket  to  a 
brakeman  employed  on  the  train,  who,  in  the  absence  of  the  conductor, 
was  authorized  to  demand  and  receive  it;  that  the  brakeman  after- 
wards approached  the  plaintiff,  and,  in  language  coarse,  profane,  and 
grossly  insulting,  denied  that  he  had  either  surrendered  or  shown  hrni 
his  ticket;  that  the  brakeman  called  the  plaintiff  a  liar,  charged  him 
with  attempting  to  avoid  the  payment  of  his  fare,  and  with  having 
done  the  same  thing  before,  and  threatened  to  split  his  head  open  and 
spill  his  brains  right  there  on  the  spot;  that  the  brakeman  stepped 
forward  and  placed  his  foot  upon  the  seat  on  which  the  plaintiff  was 
sitting,  and,  leaning  over  the  plaintiff,  brought  his  fist  close  down  to 
his  face,  and  shaking  it  violently,  told  him  not  to  yip,  if  he  did  he 
would  spot  him,  that  he  was  a  damned  liar,  that  he  never  handed  him 
his  ticket,  that  he  did  not  believe  he  paid  his  fare  either  way;  that 
this  assault  was  continued  some  fifteen  or  twenty  minutes,  and  until 
the  whistle  sounded  for  the  next  station ;  that  there  were  several  pas- 
seno-ers  present  in  the  car,  some  of  whom  were  ladies,  and  that  they 
wer'e  all  strangers  to  the  plaintiff;  that  the  plaintiff  was  at  the  time  in 
feeble  health,  and  had  been  for  some  time  under  the  care  of  a  physician, 
and  at  the  time  of  the  assault  was  reclining  languidly  in  his  seat ;  that 
he  had  neither  said  nor  done  anything  to  provoke  the  assault ;  that,  in 

9  Parts  of  the  opinions  of  Walton  and  Tapley,  JJ.,  are  omitted. 


V  t 


102  DISCRETIONARY  DAMAGES.  (Part   4 

fact,  he  had  paid  his  fare,  had  received  a  ticket,  and  had  surrendered 
it  to  this  very  brakeman  who  deHvered  it  to  the  conductor  only  a  few 
minutes  before,  by  whom  it  was  afterwards  produced  and  identified; 
that  the  defendants  were  immediately  notified  of  the  misconduct  of 
the  brakeman,  but,  instead  of  discharging  him,  retained  him  in  his 
place;  that  the  brakeman  was  still  in  the  defendants'  employ  when  the 
case  was  tried  and  was  present  in  court  during  the  trial,  but  was  not 
called  as  a  witness,  and  no  attempt  was  made  to  justify  or  excuse  his 
conduct. 

Upon  this  evidence  the  defendants  contend  that  they  are  not  liable, 
because,  as  they  say,  the  brakeman's  assault  upon  the  plaintiff  was 
willful  and  malicious,  and  was  not  directly  nor  impliedly  authorized  by 
them.  They  say  the  substance  of  the  whole  case  is  this,  that  "the 
master  is  not  responsible  as  a  trespasser,  unless  by  direct  or  implied 
authority  to  the  servant,  he  consents  to  the  unlawful  act."     *  •   *     * 

What  is  the  measure  of  relief  which  the  law  secures  to  the  injured 
party;  or,  in  other  words,  can  he  recover  exemplary  damages?  We 
hold  that  he  can.  The  right  of  the  jury  to  give  exemplary  damages 
for  injuries  wantonly,  recklessly,  or  maliciously  inflicted,  is  as  old  as 
the  right  of  trial  by  jury  itself;  and  is  not,  as  many  seem  to  suppose, 
an  innovation  upon  the  rules  of  the  common  law.  It  was  settled  in 
England  more  than  a  century  ago. 

In  1763,  Lord  Chief  Justice  Pratt  (afterwards  Earl  of  Camden), 
with  whom  the  other  judges  concurred,  declared  that  the  jury  had 
done  right  in  giving  exemplary  damages.  Huckle  v.  Money,  2  Wils. 
205. 

In  another  case  the  same  learned  judge  declared  with  emphasis,  that 
damages  are  designed  not  only  as  a  satisfaction  to  the  injured  person, 
but  likewise  as  a  punishment  to  the  guilty.  5  Camp.  Lives  Chan.  (Am. 
Ed.)  p.  214. 

In  1814,  the  doctrine  of  punitive  damages  was  stringently  applied 
in  a  case  where  the  defendant,  in  a  state  of  intoxication,  forced  himself 
into  the  plaintiff's  company,  and  insolently  persisted  in  hunting  upon 
his  grounds.  The  plaintiff  recovered  a  verdict  for  five  hundred  pounds, 
the  full  amount  of  his  ad  damnum,  and  the  court  refused  to  set  it  aside. 
Mr.  Justice  Heath  remarked  in  this  case  that  he  remembered  a  case 
where  the  jury  gave  five  hundred  pounds  for  merely  knocking  a  man's 
hat  off,  and  the  court  refused  a  new  trial.  It  goes,  said  he,  to  prevent 
the  practice  of  dueling,  if  juries  are  permitted  to  punish  insult  by 
exemplary  damages.  Merest  v.  Harvey,  5  Taunt.  442.  See,  also,  to 
the  same  effect.  Sears  v,  Lyon,  2  Starkie,  317  (decided  in  1818). 

In  1844,  Lord  Chief  Baron  Pollock  said,  that  in  actions  for  malicious 
injuries,  juries  had  always  been  allowed  to  give  what  are  called  vindic- 
tive damages.    Doe  v.  Filliter,  13  Mees.  &  W.  50. 

In  1858,  in  an  action  of  trespass  for  taking  personal  property  on 
a  fraudulent  bill  of  sale,  the  defendant's  counsel  contended  that  it  was 
not  a  case  for  the  application  of  the  doctrine  of  exemplary  damages; 


Ch.  3)  EXEMPLARY   DAMAGES.  103 

but  the  court  held  otherwise.  No  doubt,  said  Pollock,  C.  B.,  it  was  a 
case  in  which  vindictive  damages  might  be  given.  Thomas  v.  Hams, 
3  Hurl.  &  N.  961.     *     *     * 

But  it  is  said  that  if  the  doctrine  of  exemplary  damages  must  be 
regarded  as  established  in  suits  against  natural  persons  for  their  own 
willful  and  malicious  torts,  it  ought  not  to  be  applied  to  corporations 
for  the  torts  of  their  servants,  especially  where  the  tort  is  committed  by 
a  servant  of  so  low  a  grade  as  a  brakeman  on  a  railway  train,  and  the 
tortious  act  was  not  directly  nor  impliedly  authorized  nor  ratified  by 
the  corporation ;  and  several  cases  are  cited  by  the  defendants'  coun- 
sel, in  which  the  courts  seem  to  have  taken  this  view  of  the  law ;  but 
we  have  carefully  examined  these  cases,  and  in  none  of  them  was  there 
any  evidence  that  the  servant  acted  wantonly  or  maliciously;  these 
were  simply  cases  of  mistaken  duty ;  and  what  these  same  courts  would 
have  done  if  a  case  of  such  gross  and  outrageous  insult  had  been  be- 
fore them,  as  is  now  before  us.  it  is  impossible  to  say;  and  long  ex- 
perience has  shown  that  nothing  is  more  dangerous  than  to  rely  upon 
the  abstract  reasoning  of  courts,  when  the  cases  before  them  did  not 
call  for  the  application  of  the  doctrines  which  their  reasoning  is  intend- 
ed to  establish. 

We  have  given  to  this  objection  much  consideration,  as  it  was  our 
duty  to  do,  for  the  presiding  judge  declined  to  instruct  the  jury  that 
if  the  acts  and  words  of  the  defendants'  servant  were  not  directly  nor 
impliedly  authorized  nor  ratified  by  the  defendant,  the  plaintiff  could 
not  recover  exemplary  damages.    We  confess  that  it  seems  to  us  that 
there  is  no  class  of  cases  where  the  doctrine  of  exemplary  damages 
can  be  more  beneficially  applied  than  to  railroad  corporations  in  their 
capacity  of  common  carriers  of  passengers;   and  it  might  as  well  not 
be  applied  to  them  at  all  as  to  limit  its  application  to  cases  where  the 
servant  is  directly  or  impliedly  commanded  by  the  corporation  to  mal- 
treat and  insult  a  passenger,  or  to  cases  where  such  an  act  is  directly 
or  impliedly  ratified ;  for  no  such  cases  will  ever  occur.    A  corporation 
is  an  imaginary  being.    It  has  no  mind  but  the  mind  of  its  servants ;  it 
has  no  voice  but  the  voice  of  its  servants;  and  it  has  no  hands  wath 
which  to  act  but  the  hands  of  its  servants.    All  its  schemes  of  mischief, 
as  well  as  its  schemes  of  public  enterprise,  are  conceived  by  human 
minds  and  executed  by  human  hands ;  and  these  minds  and  hands  are 
its  servants'  minds  and  hands.    All  attempts,  therefore,  to  distinguish 
between  the  guilt  of  the  servant  and  the  guilt  of  the  corporation ;  or 
the  malice  of  the  servant  and  the  malice  of  the  corporation;  or  the 
punishment  of  the  servant  and  the  punishment  of  the  corporation,  is 
sheer  nonsense ;  and  only  tends  to  confuse  the  mind  and  confound  the 
judgment.     Neither  guilt,  malice,  nor  suffering  is  predicable  of  this 
ideal  existence,  called  a  corporation.    And  yet  under  cover  of  its  name 
and  authority,  there  is  in  fact  as  much  wickedness,  and  as  much  that 
is  deserving  of  punishment,  as  can  be  found  anywhere  else.    And  since 
these  ideal  existences  can  neither  be  hung,  imprisoned,  whipped,  or  put 


104  DISCRETIONARY  DAMAGES.  (Part   4 

in  the  stocks — since  in  fact  no  corrective  influence  can  be  brought  to 
bear  upon  them  except  that  of  pecuniary  loss — it  does  seem  to  us  that 
the  doctrine  of  exemplary  damages  is  more  beneficial  in  its  application 
to  them,  than  in  its  application  to  natural  persons.  If  those  who  are 
in  the  habit  of  thinking  that  it  is  a  terrible  hardship  to  punish  an  in- 
nocent corporation  for  the  wickedness  of  its  agents  and  servants,  will 
for  a  moment  reflect  upon  the  absurdity  of  their  own  thoughts,  their 
anxiety  will  be  cured.  Careful  engineers  can  be  selected  who  will  not 
run  their  trains  into  open  draws;  and  careful  baggage  men  can" be  se- 
cured, who  will  not  handle  and  smash  trunks  and  band-boxes  as  is  now 
the  universal  custom;  and  conductors  and  brakemen  can  be  had  who 
will  not  assault  and  insult  passengers  ;  and  if  the  courts  will  only  let  the 
verdicts  of  upright  and  intelligent  juries  alone,  and  let  the  doctrine  of 
exemplary  damages  have  its  legitimate  influence,  we  predict  these  great 
and  growing  evils  will  be  very  much  lessened,  if  not  entirely  cured. 
There  is  but  one  vulnerable  point  about  these  ideal  existences,  called 
corporations ;  and  that  is,  the  pocket  of  the  monied  power  that  is  con- 
cealed behind  them;  and  if  that  is  reached  they  will  wince.  When  it 
is  thoroughly  understood  that  it  is  not  profitable  to  employ  careless 
and  indifferent  agents,  or  reckless  and  insolent  servants,  better  men 
will  take  their  places,  and  not  before. 

It  is  our  judgment,  therefore,  that  actions  against  corporations,  for 
the  willful  and  malicious  acts  of  their  agents  and  servants  in  executing 
the  business  of  the  corporation,  should  not  form  exceptions  to  the  rule 
allowing  exemplary  damages.  On  the  contrary,  we  think  this  is  the 
very  class  of  cases,  of  all  others,  where  it  will  do  the  most  good, 
and  where  it  is  most  needed.  And  in  this  conclusion  we  are  sustained 
by  several  of  the  ablest  courts  in  the  country.     *     *     * 

But  the  defendants  say  that  the  damages  awarded  by  the  jury  are 
excessive,  and  they  move  to  have  the  verdict  set  aside  and  a  new  trial 
granted  for  that  reason.  That  the  verdict  in  this  case  is  highly  puni- 
tive, and  was  so  designed  by  the  jury,  cannot  be  doubted ;  but  by  whose 
judgment  is  it  to  be  measured  to  determine  whether  or  not  it  is  ex- 
cessive? What  standard  shall  be  used  ?  *  *  *  It  is  the  wisdom  of 
the  law  to  suppose  that  the  judgment  of  the  jury  is  more  likely  to  be 
right  than  the  judgment  of  the  court,  for  it  is  to  the  former  and  not 
to  the  latter  that  the  duty  of  estimating  damages  is  confided.  Unless 
the  damages  are  so  large  as  to  satisfy  the  court  that  the  verdict  was  not 
the  result  of  an  honest  exercise  of  judgment,  they  have  no  right  to  set 
it  aside. 

A  careful  examination  of  the  case  fails  to  satisfy  us  that  the  jury 
acted  dishonestly,  or  that  they  made  any  mistake  in  their  application 
of  the  doctrine  of  exemplary  damages.  We  have  no  doubt  that  the 
highly  punitive  character  of  their  verdict  is  owing  to  the  fact  that, 
after  Jackson's  misconduct  was  known  to  the  defendants,  they  still  re- 
tained him  in  their  service.  The  jury  undoubtedly  felt  that  it  was 
due  to  the  plaintiff,  and  due  to  every  other  traveler  upon  that  road,  to 


Ch.  3)  EXEMPLARY  DAMAGES.  105 

have  him  instantly  discharged ;  and  that  to  retain  him  in  his  place,  and 
thus  shield  and  protect  him  against  the  protestation  of  the  plaintiff, 
made  to  the  servant  himself  at  the  time  of  the  assault,  that  he  would 
lose  his  place,  was  a  practical  ratification  and  approval  of  the  servant's 
conduct,  and  would  be  so  understood  by  him  and  by  every  other  servant 
on  the  road.     *     *     * 

It  will  be  an  impressive  lesson  to  these  defendants,  and  to  the  man- 
agers of  other  lines  of  public  travel,  of  the  risk  they  incur  when  they 
retain  in  their  service  servants  known  to  be  reckless,  ill-mannered,  and 
unfit  for  their  places.  And  it  will  encourage  those  who  may  suffer  in- 
sult and  violence  at  the  hands  of  such  servants,  not  to  retaliate  or  at- 
tempt to  become  their  own  avengers,  as  is  too  often  done,  but  to  trust 
to  the  law  and  to  the  courts  of  justice,  for  the  redress  of  their  griev- 
ances. It  will  say  to  them,  be  patient  and  law-abiding,  and  your 
redress  shall  surely  come,  and  in  such  measure  as  will  not  add  insult  to 
your  previous  injury.     *     *     * 

Tapley,  J.,  did  not  concur  upon  the  question  of  damages,  and  gave 
his  opinion  as  follows  : 

In  so  much  of  the  opinion  of  Mr.  Justice  Walton  as  determines  the 
question  of  the  liability  of  the  defendants  to  answer  in  damages  for  the 
acts  of  the  brakeman  Jackson  I  concur;  but  I  do  not  concur  in  sus- 
taining the  rulings  of  the  court  at  the  trial  of  the  cause  fixing  the  rule 
of  damage  for  the  jury;  and  I  regard  it  so  clearly  wrong  in  principle, 
inequitable  and  unjust  in  practice,  and  so  entirely  wanting  in  prec- 
edent, that  my  duty  requires  something  more  than  a  silent  dissent. 
*     *     * 

If  the  act  of  Jackson  was  a  willful,  wanton,  and  malicious  trespass 
upon  his  part,  and  was  neither  directly  nor  impliedly  authorized  or 
ratified  by  the  defendants,  the  act  was  neither  in  fact  nor  legal  intend- 
ment the  act  of  the  defendants.  This  is  quite  clear  from  reason  and 
authority.  Although  it  may  be  one  which  devolved  upon  them  a  lia- 
bility, it  is  in  no  sense  their  act;  so  that,  if  ordinarily  the  malice  of  the  u- 
acting  agent  was  so  inseparably  connected  with  the  act  that  it  would  at-  ■ 

tach  to  the  principal,  nolens  yolens,  in  those  cases  where,  by  legal  in- 
tendment, it  was  his,  the  principal's  act,  in  this  case  it  would  not,  it 
being  neither  in  act  or  legal  intendment  the  act  of  the  defendants. 

The  requested  instruction  clearly  presented  the  proposition  that  un- 
less the  act  was  authorized  directly  or  impliedly,  qr  subsequently  rati- 
fied by  the  defendants,  they  could  not  be  chargeable  with  the  motive 
and  intent  of  the  actor.  This  was  refused  and  the  rule  left,  that,  re- 
gardless of  authorization  or  ratification,  they  might  be  punished  for 
the  willful,  wanton,  and  malicious  acts  of  Jackson.     *     *     * 

An  effort  is  made  to  make  corporations  an  exception  to  the  rule,  al- 
though all  the  authorities,  whether  found  in  elementary  treatises  or 
judicial  decisions,  place  them  upon  the  same  footing.  The  idea  put 
forward  seems  to  be,  that  the  servant  is  the  corporation.  In  order, 
however,  that  the  position  may  certainly  stand  as  it  is  made,  and  the 


106  DISCRETIONARY  DAMAGES.  (Part   4 

argument  proceed  upon  no  erroneous  deductions  of  mine,  I  quote  :  "A 
corporation  is  an  imaginary  being.  It  has  no  mind  but  the  mind  of  its 
servants ;  it  has  no  voice  but  the  voice  of  its  servants,  and  it  has  no 
hands  with  which  to  act  but  the  hands  of  its  servants.  All  its  schemes 
of  mischief,  as  well  as  its  schemes  of  public  enterprise,  are  conceived 
by  human  minds  and  executed  by  human  hands,  and  those  minds  and 
hands  are  its  minds  and  hands.  All  attempts,  therefore,  to  distinguish 
between  the  guilt  of  the  servant  and  the  guilt  of  the  corporation ;  or 
the  malice  of  the  servant  and  the  malice  of  the  corporation ;  or  the 
punishment  of  the  servant  and  the  punishment  of  the  corporation  is 
'sheer  nonsense,'  and  only  tends  to  confuse  the  mind  and  confound 
the  judgment." 

In  relation  to  this  proposition  one  inquiry  may  be  made,  viz. :  Have 
these  servants  no  "minds,"  no  "hands,"  and  no  "schemes"  except  those 
of  the  corporation?  Are  all  their  schemes,  all  their  acts,  and  all  the 
emanations  of  their  minds  those  of  the  corporation?  If  they  have  any 
other,  shall  the  corporation  be  punished  for  them? 

Does  not  the  argument  attach  a  responsibility  to  the  corporation  for 
all  the  acts  of  a  person  in  its  employ?  If  it  does  not,  where  is  the 
dividing  line?  It  is  all,  or  part.  What  part?  This  is  the  question 
which  law-writers  and  judges  have  been  answering  for  many  years, 
and  whether,  in  the  estimation  of  any,  it  be  or  not  "sheer  nonsense," 
they  have  distinguished  between  those  acts  of  the  agent  for  which  the 
corporation  is,  and  those  for  which  it  is  not  liable. 

What  its  "voice"  commands,  what  its  "hands"  do,  and  the  "schemes" 
which  it  executes,  it  should  be  and  is  held  responsible  for,  whether 
done  by  direct  or  implied  authority  or  subsequently  ratified  by  them; 
and  when  they  do  this  in  wanton  and  willful  disregard  of  the  rights  of 
others,  they  may,  under  the  law  as  now  administered,  be  punished  by 
punitive  damages. 

But  when  the  "voice"  which  speaks,  and  the  "hand"  which  executes, 
is  not  that  of  the  principal,  however  wanton,  willful,  and  malicious  it 
may  be,  the  "stones,"  even  "cry  out"  against  inflicting  upon  him  a 
punishment  therefor,  and  the  more  wanton  and  malicious  the  act,  the 
more  horrible  is  the  doctrine. 

Corporations  are  but  aggregated  individuals  acting  through  the 
agency  of  man.  They  may  consist  of  a  single  individual,  or  more,  and 
they  are  no  more  ideal  beings  when  thus  acting  than  the  individual 
thus  acting.  For  certain  acts  the  individual,  though  not  manually  en- 
gaged in  it,  is  held  responsible.  For  the  same  acts  the  body  of  in- 
dividuals, denominated  a  corporation,  are  held  responsible.  The  prin- 
cipal and  agent,  in  both  cases,  are  separate  and  independent  beings. 
Agents  presuppose  a  principal — somebody  to  act  for.  Somebody  whose 
orders  they  are  to  execute,  and  somebody  for  whom  they  are  to  per- 
form service ;  somebody  who  is  answerable  to  them,  and  who  may  be 
answerable  for  the  acts  done  under  their  direction.  Mr.  Justice  Brown, 
in  Hibbard  v.  Railroad  Co.,  15  N.  Y.  467,  before  cited,  says,  "The 


Ch.  3)  EXEMPLARY  DAMAGES.  107 

conductor  and  those  who  aided  him  are  not  the  company ;  they  are  its ' 
agents  and  servants,"  If  the  employe  and  servant  is  the  corporation, 
in  fact  or  legal  intendment,  it  does  not  act  through  agents.  Its  acts 
are  all  the  direct  acts  of  principals  without  the  intervention  of  any 
other  power,  and  it  carries  us  back  to  a  responsibility  for  all  the  acts 
of  a  person  employed  by  a  corporation,  whether  those  acts  have  any 
relation  to  his  particular  employment  or  not,  a  proposition  too  absurd 
and  monstrous  in  its  results  to  be  entertained  at  all.  Mr.  Justice  Camp- 
bell, in  giving  the  opinion  of  the  Supreme  Court  of  the  United  States, 
in  the  case  before  cited  (Philadelphia,  W.  &  B.  R.  Co.  v.  Quigley,  ^1 
How.  202,  16  L.  Ed.  73),  says,  the  result  of  the  cases  is  that  for  acts 
done  in  the  course  of  its  business  and  of  their  employment  "the  cor- 
poration is  responsible,  as  an  individual  is  responsible,  under  similar 
circumstances," 

I,  therefore,  come  to  the  conclusion  that  if  liable  at  all  to  be  punish- 
ed for  the  malice  of  Jackson,  it  must  be  upon  some  other  ground  than 
their  legal  identity  with  him,  and  that  in  no  sense  can  his  malice  be 
said  to  be  their  malice ;  and  there  seems  to  be  strong  indications  in  the 
charge  of  the  presiding  judge,  that  he,  at  that  time,  placed  it  upon  no 
such  grounds.  The  defendants,  in  view  of  this  assumption  by  the 
plaintiff,  "requested  the  presiding  judge  to  instruct  the  jury  that  the 
plaintiff  is  not  entitled  to  recover  against  the  defendant  company  any 
greater  damages  than  he  might  recover  against  Jackson  himself,  for 
the  same  cause  of  action  upon  similar  evidence."  This  instruction 
the  court  declined  to  give,  and  remarked  to  the  jury,  "I  think  you  can- 
not rightfully  be  required  to  enter  into  a  consideration  of  the  damages 
which  a  party,  not  now  before  the  court,  and  has  not,  therefore,  had 
an  opportunity  to  be  heard,  ought  to  pay,  and  then  measure  the  dam- 
ages in  this  case  which  has  been  heard  by  those  which  you  think  might 
be  just  in  another  case  which  has  not  been  heard.  We  will  endeavor 
to  decide  this  case  right  now,  and  when  Jackson's  case  comes  before 
us,  if  it  ever  does,  we  will  endeavor  to  decide  that  right." 

I  think  the  argument  is  very  strong  from  this  remark,  that  it  was 
not  the  malice  and  ill-will  of  Jackson  that  was  designed  to  be  punished, 
for  he  says  his  case  has  not  been  heard  The  court  say,  substantially, 
we  know  not  what  excuses  or  justification  he  may  offer  when  heard, 
if  ever,  "and  when  his  case  comes  before  us,  if  ever  it  does,  we  will 
endeavor  to  decide  that  right."  One  would  suppose  that  it  was  some 
"wanton,  malicious  act,  committed  in  reckless  and  willful  disregard 
of  the  rights  of  the  injured  party,"  by  these  defendants  that  was  to 
receive  such  punishment  as  should  "serve  a  warning  and  example 
to  others,"  and  not  such  an  act  done  by  Jackson.  The  argument  would 
seem  to  proceed  and  say  Jackson,  for  his  act,  may  deserve  one  pun- 
ishment, and  those  defendants,  for  their  acts,  may  deserve  another; 
and  I  cannot  well  forbear  the  inquiry  here,  if  there  is  not  here  some  evi- 
dence of  an  "attempt  to  distinguish  between  the  guilt  of  the  servant 
and  the  guilt  of  the  corporation ;  or  the  malice  of  the  servant,  and  the 


108  DISCRETIONARY  DAMAGES.  (Part   4 

malice  of  the  corporation;  or  the  punishment  of  the  servant,  and  the 
punishment  of  the  corporation?"  Was  it  here  that  "sheer  nonsense" 
was  enacted,  and  "the  mind  confused,"  and  the  "judgment  con- 
founded"? 

If  it  was  the  malicious  act  of  the  defendants  that  was  to  be  punished, 
the  enormity  of  Jackson's  wrong  had  indeed  nothing  to  do  with  it.  If 
it  was  the  malicious  wrong  of  Jackson  that  was  to  be  punished,  why 
should  a  party,  innocent  of  all  wrong  in  the  matter,  be  punished  more 
than  the  wrong-doer  himself.  If  he  was  the  corporation,  why  would 
not  all  the  acts  of  extenuation  and  justification  surrounding  him  be  al- 
so the  acts  of  the  corporation,  and  be  proper  elements  to  be  considered 
in  graduating  or  fixing  the  penalty?  How  could  his  case  come  before 
us,  if  he  was  the  corporation?  Would  it  be  to  be  punished  for  the  act 
of  the  corporation  ? 

If  we  hold  both  guilty  and  both  liable,  it  must  be  founded  upon  the 
idea  of  two  actors,  and  that  the  employe  is  not  only  the  corporation 
but  somebody  else,  and  the  nonentity  of  agent  becomes  itself  a  nonen- 
tity, and  instead  of  a  mere  imaginary  thing  which  swallows  up  and  ex- 
tinguishes all  the  relations  of  principal  and  agent,  and  renders  any  at- 
tempt to  distinguish  between  them  "sheer  nonsense,"  we  do  have  two 
distinct,  independent,  accountable  subjects,  susceptible  of  being  brought 
before  the  courts  to  answer  and  be  punished,  and  we  are  not  left  to  the 
ideal  action  of  punishing  an  ideal  existence.  Again ;  if  the  actor  is 
brought  before  the  court  and  punished,  would  he  be  punished  for  the 
act  of  the  corporation  or  his  own  act  ?  for  the  malice  of  the  corpora- 
tion, or  his  own  malice?  If  imprisoned,  should  we  say  the  corporation 
was  imprisoned? 

If  not,  and  he  is  (as  undoubtedly  he  may  be)  called  to  answer  for 
an  assault,  and  punished  for  an  assault,  when  we  come  to  fix  the 
punishment,  do  we  not  distinguish  between  his  guilt  and  the  guilt  of  the 
corporation,  his  malice  and  the  malice  of  the  corporation?  And  when 
the  rule  is  required  that  we  punish  him  in,  the  same  manner  and  to  the 
same  extent  as  the  corporation,  should  we  not  reply  very  much  as  did 
the  presiding  judge  at  the  trial?  I  think  there  can  be  no  two  opinions 
about  the  matter,  and  that  there  is  manifestly  a  distinction  between 
the  two,  and  that  there  are  two  to  distinguish  between,  and  that  when 
the  act  is  not  authorized  by  any  previous  command  or  subsequent  adop- 
tion, it  is  not,  and  cannot  in  the  nature  of  things  be  made  the  act  of 
another  than  the  actor.  Laws  may  be  made  making  others  responsible 
therefor,  but  it  is  the  act  of  him  who  does  it,  and  not  of  him  who  nei- 
ther does  nor  authorizes  it;  and  no  amount  of  judicial  legislation  or 
refinement  can  make  it  so ;  as  before  remarked,  it  is  not  possible  in  the 
nature  of  things.     *     *     * 

The  learned  judge  then  adds,  "And  it  might  as  well  not  be  applied 
to  them  at  all,  as  to  limit  its  application  to  cases  where  the  servant  is 
directly  and  specially  directed  by  the  corporation  to  maltreat  and  in- 
sult a  passenger,  or  to  cases  where  such  an  act  is  directly  and  specifi- 


Ch.  3)  EXEMPLARY  DAMAGES.  109 

cally  ratified ;  for  no  such  cases  will  ever  occur."  The  instruction  re- 
quested and  refused,  used  the  term  directly  or  "impliedly,"  and  with 
this  sentence  so  amended,  I  have  simply  to  say,  that  if  no  such  case 
ever  does  occur,  there  is  no  occasion,  right,  or  propriety  in  inflicting-  the 
punishment.  If  the  act  is  neither  directly  nor  impliedly  authorized  or 
ratified,  there  is  in  it  no  wantonness,  no  malice,  and  no  ill-will  toward 
the  person  injured,  and  no  public  wrong  by  them  done  to  be  redressed 
or  atoned  for.  Repentance  with  them  is  absolutely  impossible.  The 
argument  is  simply  this :  If  we  do  not  punish  you  when  you  do  not 
directly  or  impliedly  authorize  or  adopt  a  wrong,  we  shall  never  have 
an  opportunity,  for  you  never  will  thus  authorize  or  adopt  one.  The 
argument  is  clearly  stated  by  the  learned  judge,  and  I  leave  it  as  he 
left  it,  remarking  that,  if  the  end  to  be  attained  is  the  punishment  of 
railroad  corporations  whether  guilty  or  innocent,  the  rule  requiring 
them  first  to  be  guilty  of  wrong  had  better  be  abolished.     *     *     * 

The  plaintiff,  in  the  printed  brief  of  his  argument  presented  in  this 
case,  says:  "If,  therefore,  an  individual  master,  perhaps  personally 
innocent  of  positive  evil  intent  is  liable  to  punishment  by  exemplary 
damages  for  the  malice  of  his  servant,  for  a  much  stronger  reason 
ought  a  soulless  corporation  to  be  responsible  for  the  wicked  and  wan- 
ton acts  of  its  sole  representative." 

In  my  judgment,  if  the  premise  were  right  in  this  proposition,  there 
is  no  reason  why  the  conclusion  is  not  right.  But  I  know  of  no  case 
where  the  master,  innocent  of  all  wrong  upon  his  own  part,  has  been 
held  to  be  liable  to  punishment  for  the  malice  of  his  servant.  It  is 
only  where  he  has  been  a  participator  in  some  manner  in  the  wanton- 
ness and  malice  displayed  in  the  act,  and  it  is  his  own  wanton  and 
malicious  act  that  is  then  punished.  The  plaintiff  says  further :  "Be- 
sides, if  corporations  cannot  be  reached  in  exemplary  damages  for  the 
malice  of  their  servants,  they  escape  entirely,  and  thus  stand  infinitely 
better  than  citizens  who  are  liable  in  punitory  damages,  not  only  for 
their  own  personal  acts,  which  latter  it  is  obvious  a  corporation  can 
never  be  guilty  of  in  the  strict  sense."  If  citizens  were  liable  in  puni- 
tory damages  for  the  malice  of  their  servants,  in  nowise  participated 
in  by  themselves,  the  conclusion  that  corporations  would  stand  better 
than  citizens,  if  they  escaped  a  punishment  for  the  malice  of  their  serv- 
ants, is  irresistible;  but  again  I  say,  I  know  of  no  law,  authority,  or 
reason  for  holding  an  innocent  citizen  to  punishment  for  the  malice  of 
his  servant  or  agent.  It  is  quite  as  much  as  one  can  reconcile  with  just 
accountability  to  hold  him  to  compensate  for  injuries  maliciously  in- 
flicted in  the  course  of  his  employment,  without  adding  punishment. 

The  theory  of  punitive  damages  is  the  infliction  of  a  punishment  for 
an  offense  committed.  It  presupposes  the  existence  of  a  moral  wrong, 
an  infraction  of  the  moral  code ;  a  wrong  in  which  the  community  has 
some  interest  in  the  redress,  and  in  securing  immunity  from  in  the 
future.  It  presupposes  also  an  offender,  and  designs  to  punish  that  of- 
fender.    To  punish  one  not  an  offender  is  against  the  whole  theory. 


110  DISCRETIONARY  DAMAGES.  (Part   4 

/  policy,  and  practice  of  the  law  and  its  administrators.     "It  is  better 

that  ten  guilty  men  should  escape  than  one  innocent  man  should  suf- 
fer." Before  the  smallest  fine  can  be  inflicted,  evidence,  leaving  no 
reasonable  doubt  of  the  guilt  of  the  party  to  be  thus  punished,  must 
be  adduced ;  evidence  that  he  possessed  the  evil  intent,  wicked  and  de- 
praved spirit ;  that  it  was  he  that  was  regardless  of  social  duty.  The 
idea  of  punishing  one  who  is  not  particeps  criminis  in  the  wrong  done 
is  so  entirely  devoid  of  the  first  principles  and  fundamental  elements 
of  law,  that  it  can  never  find  place  among  the  rules  of  action  in  an  in- 
telligent and  virtuous  community.  There  is  no  parallel,  for  it  is  in 
the  administration  of  the  law,  and  courts  of  the  highest  repute  have, 
whenever  the  question  has  arisen,  declared  it  unsound  in  principle  and 
inequitable  in  practice.     *     *     * 

Some  comment  is  made  concerning  the  retention  of  Jackson  in  the 
defendant's  employ.  All  that  I  find,  in  the  report  of  the  case  con- 
cerning the  matter,  is  a  statement,  made  by  the  plaintiff  in  his  testi- 
mony, that  he  had  seen  him  several  times  since,  in  perfonnance  of 
duties  upon  the  train. 

So  far  as  any  question  arises  upon  the  rule  of  damages  laid  down 
in  the  instruction,  it  is  quite  apparent  this  is  perfectly  immaterial,  and 
could  be  regarded,  in  any  event,  only  as  remote  evidence  of  ratifica- 
tion. If  he  was  retained  in  their  employ,  we  do  not  know  under  what 
circumstances ;  possibly  they  were  such  as  would  have  furnished  to 
the  mind  of  any  reasonable  man  a  perfect  justification;  sitting  here, 
we  must  take  the  report  as  we  find  it.  The  opinion  states  that  the  ju- 
ry undoubtedly  regarded  it  as  "a  practical  ratification  and  approval  of 
his  conduct."  Could  they  have  done  so  if  they  had  been  correctly 
instructed  in  the  theory  now  advanced?  What  was  there  to  ratify? 
Yea,  more,  who  was  there  to  ratify?  If  the  servant  is  the  corporation, 
and  the  act  of  commission  was  the  act  of  the  corporation,  was  there 
anything  to  ratify?  Was  it  not  an  original  act  of  the  corporation? 
Did  they  ratify  their  own  act?  If  the  act  of  commission  was  origi- 
nally theirs,  the  act  of  retention  was  a  subsequent  act,  having  no  re- 
lation to  the  first.  Did  that  infringe  any  right  of  his?  If  it  did,  it 
was  a  new  and  substantive  cause  of  complaint  not  embraced  in  this 
declaration.  If,  however,  the  theory  which  is  now  advanced  is  not 
only  novel  but  unsound,  and  that  previous  command  or  subsequent 
approval  was  necessary  to  warrant  the  infliction  of  punishment,  the 
matter  was  of  vital  importance,  and  the  defendants  should  have  had  the 
advantage  of  the  instruction.  It  is  not  quite  right,  I  think,  to  now 
assume  that  the  jury  regarded  it  as  a  ratification.  Possibly  the  gen- 
tlemen composing  that  jury  were  not  quite  prepared  to  find  that  the 
gentlemen  composing  the  administrative  and  executive  departments 
of  that  corporation  were  so  lost  to  all  that  is  decent  and  honorable 
among  men,  and  so  blind  to  their  own  interests  that  they  would  jus- 
tify an  act  condemned  by  everybody.  Giving  full  force  to  the  encomi- 
ums bestowed  in  the  opinion  upon  juries  might  we  not  conclude  that 


Ch.  3)  EXEMPLARY  DAMAGES.  HI 

they  would  be  more  likely  to  infer,  from  the  circumstances,  that  such 
amends  had  been  made  as  honorable  gentlemen  would  require,  rather 
than  convict  them  of  an  act  that  any  prison  convict  would  cry  out 

against?  . 

Will  it  do  to  shield  the  verdict  with  that  which  the  jury  were  sub- 
stantially told  was  immaterial? 

I  have  not  considered  this  case  upon  the  motion,  or  upon  any  facts 
supposed  to  be  proved  by  the  evidence  reported,  nor  have  I  considered 
the  question  whether  under  the  plaintiff's  declaration,  he  can  recover 
upon  the  grounds  set  forth  in  the  opinion.  I  have  only  considered  the 
rule  advanced  by  the  instructions.  Under  this  rule  a  railroad  corpora- 
tion may  exercise  all  possible  care  in  the  selection  of  servants,  and 
strictly  enjoin  them  from  day  to  day  against  any  irregularity  of  con- 
duct; yet  if  one  of  them,  unmindful  of  his  duty,  regardless  of  his  mas- 
ter's 'interest,  and  bent  on  exercising  some  private  malice  against  a  per- 
son who  happened  to  be  a  traveler,  assaults  him,  the  corporation  must 
not  only  make  full  compensation  for  all  the  injury,  under  the  most  lib- 
eral rules,  but  may  be  punished  for  an  act  they  have  used  every  endeav- 
or within' the  reach  of  human  power  to  prevent,  one  committed  by  an- 
other, against  their  wishes,  interest,  and  positive  commands ;  and  it 
is  to  be  such  a  punishment  as  will  "serve  as  a  warning  and  example 

to  others."  ,      ,  ,  •  •,        i 

If  we  were  punishing  the  actor  himself,  we  should  consider  the 
probable  effect  of  a  given  punishment  upon  him;  but  when,  for  his 
offense,  we  punish  another,  how  can  we  form  any  idea  of  the  influ- 
ence of  a  punishment  he  cannot  feel.  The  master  may  discharge  him 
from  his  employment,  and  he  thus  feel  the  punishment  another  suffers 
indirectly,  and  to  that  extent.  It  will  be  perceived,  however,  that 
this  is  the  extent  for  all  classes,  kinds,  and  degrees  of  offense.  It  is 
the  only  channel  through  which  he  can  be  made  to  feel  it.  But  sup- 
pose it  were  otherwise,  is  the  punishment  which  is  inflicted  upon  the 
innocent  party  any  the  less  keen,  unjust,  and  onerous? 

Is  that  in  any  degree  affected  by  the  manner  in  which  the  offender 
receives  the  intelligence  of  its  infliction  upon  another?  Again;  how 
shall  the  corporation  avoid  the  constant  recurrence  of  penalties  for  the 
offenses  of  others?  Can  they,  when  they  select  another  servant,  ex- 
ercise any  more  care  or  be  more  watchful  over  him?  Can  they  change 
the  passions  of  men?  What  is  their  fault  if  they  have  exercised  all 
the  care,  wisdom,  and  prudence  with  which  men  are  invested?  Must 
they  be  punished  for  not  being  omnipotent? 

If  the  idea  and  design  of  punishment  is  to  restrain  the  offender  and 
make  the  punishment  serve  as  a  warning  to  others,  how  can  it  better 
be  done  than  by  making  it  personal;  inflicting  it  upon  the  offender? 
How  can  its  influence  uDon  others  be  made  more  restraining  than  by 
the  reflection  that  they  must  personally  suffer  the  same  punishment 
if  they  offend?  Is  the  reflection  that  others  will  suffer  it,  more  potent 
with  that  class  of  individuals?     Has  the  observation  of  men  led  to 


112  DISCRETIONARY  DAMAGES.  (Part   4 

this  conclusion  ?  And  if  it  has,  have  all  the  principles  of  reason,  right, 
and  justice  yielded  to  it  and  made  it  right? 

If  the  punishment,  thus  inflicted,  is  to  serve  as  a  warning  to  others, 
who  must  take  warning?  Evidently  the  innocent  as  well  as  guilty. 
The  innocent  are  to  be  the  greatest  sufferers  by  reason  of  the  offense, 
and  punished  alone  directly.  It  is  to  serve  as  a  warning  to  all  inno- 
cent persons,  that  they  may  be  punished  for  the  offenses  of  others, 
after  having  fully  compensated  the  injury  done. 

One  other  consideration  I  barely  suggest.  The  liability  in  this  case 
is  based  upon  a  contract;  purely  so.  No  liability  could,  under  the 
proof,  arise  by  the  rules  of  law  applicable  to  master  and  servant. 
Had  the  plaintiff  been  a  stranger  to  the  defendants,  and  had  no  claims 
upon  them,  except  such  as  each  citizen  owes  to  the  other,  no  liability 
of  any  kind  would  have  attached  to  these  defendants  for  the  will- 
ful trespass  of  their  servant.  Not  only  would  they  be  saved  punish- 
ment, but  compensation  even.  Now  it  being  a  case  where  no  liability 
would  attach,  but  for  the  contract,  and  the  liability  which  does  attach 
being  for  breach  of  contract,  the  rule  in  this  case  is  not  only  punish- 
ing one  for  the  act  of  another,  but  it  is  doing  this  in  an  action  ex 
contractu,  for  this  declaration  must  be  construed  to  be  such  to  meet 
the  law  of  the  opinion. 

All  consideration  of  the  matter  tends  to  show  the  fundamental  er- 
ror in  holding  an  innocent  party  liable  to  punishment.  In  all  these 
acts,  done  by  the  command  of  the  principal  (whether  the  authority 
appears  by  direct  command  or  by  fair  implication  from  the  proceed- 
ings of  the  party  charged),  there  is  propriety  in  punishing  if  the  act 
be  wrong  and  an  infraction  of  the  moral  code;  but  in  those  cases 
where  the  act  is  unauthorized,  and  the  principal  is  in  nowise  con- 
nected with  the  animus  of  the  actor,  and  becomes  liable  to  compensate 
upon  grounds  other  than  that  the  act  was  done  by  his  command,  it 
appears  to  me  that  all  punishment  inflicted,  or  rather  all  suffering  im- 
posed under  the  name  of  pimishment,  is  flagrant  injustice;  it  is  not 
punishment,  for  it  has  not  its  necessary  antecedent,  wrong:  both  rea- 
son and  authority  are  opposed  to  it,  and  no  case  can  be  found,  where 
the  question  has  been  presented  and  discussed,  in  which  such  doctrines 
are  not  denounced  as  unsound  and  unjust.     *     *     * 


LAKE  SHORE  &  M.  S.  RY.  CO.  v.  PRENTICE. 

(Supreme  Court  of  the  United  States,  1893.     147  U.  S.  101,  13  Sup.  Ct  261, 

37  L.  Ed.  97.) 

On  October  12,  1886,  the  plaintiff,  his  wife,  and  a  number  of  oth- 
er persons  were  passengers,  holding  excursion  tickets,  on  a  regular 
passenger  train  of  the  defendant's  railroad,  from  Norwalk,  in  Ohio,  to 
Chicago,  in  Illinois.  During  the  journey  the  plaintiff'  purchased  of 
several  passengers  their  return  tickets,  which  had  nothing  on  them 


Ch.  3)  EXEMPLARY   DAMAGES.  11:^^' 

to  show  that  they  were  not  transferable.  The  conductor  of  the  train, 
learning  this,  and  knowing  that  the  plaintiff  had  been  guilty  of  no  of- 
fense for  which  he  was  liable  to  arrest,  telegraphed  for  a  police  officer, 
an  employe  of  the  defendant,  who  boarded  the  train  as  it  approached 
Chicago.  The  conductor  thereupon,  in  a  loud  and  angry  voice,  pointed 
out  the  plaintiff  to  the  officer,  and  ordered  his  arrest;  and  the  officer, 
by  direction  of  the  conductor,  and  without  any  w^arrant  or  authority 
of  law,  seized  the  plaintiff,  and  rudely  searched  him  for  weapons  in 
the  presence  of  the  other  passengers,  hurried  him  into  another  car, 
and  there  sat  down  by  him  as  a  watch,  and  refused  to  tell  him  the 
cause  of  his  arrest,  or  to  let  him  speak  to  his  wife.  While  the  plaintiff 
was  being  removed  into  the  other  car,  the  conductor,  for  the  purpose 
of  disgracing  and  humiliating  him  with  his  fellow  passengers,  openly 
declared  that  he  was  under  arrest,  and  sneeringly  said  to  the  plain- 
tiff's wife,  "Where's  your  doctor  now?"  On  arrival  at  Chicago,  the 
conductor  refused  to  let  the  plaintiff  assist  his  wife  with  her  parcels 
in  leaving  the  train,  or  to  give  her  the  check  for  their  trunk;  and.  in 
the  presence  of  the  passengers  and  others,  ordered  him  to  be  taken 
to  the  station  house,  and  he  was  forcibly  taken  there,  and  detained 
until  the  conductor  arrived;  and,  knowing  that  the  plaintiff  had  been 
guilty  of  no  offense,  entered  a  false  charge  against  him  of  disorderly 
conduct,  upon  which  he  gave  bail  and  was  released,  and  of  which,  on 
appearing  before  a  justice  of  the  peace  for  trial  on  the  next  day,  and 
no  one  appearing  to  prosecute  him,  he  was  finally  discharged. 

Gray,  J.^"  *  *  *  'j^j^g  single  question  presented  for  our  de- 
cision, is  whether  a  railroad  corporation  can  be  charged  with  punitive 
or  exemplary  damages  for  the  illegal,  wanton,  and  oppressive  conduct 
of  a  conductor  of  one  of  its  trains  towards  a  passenger.     *     *     * 

The  most  distinct  suggestion  of  the  doctrine  of  exemplary  or  puni- 
tive damages  in  England  before  the  American  Revolution  is  to  be 
found  in  the  remarks  of  Chief  Justice  Pratt  (afterwards  Lord  Cam- 
den) in  one  of  the  actions  against  the  king's  messengers  for  trespass 
and  imprisonment,  under  general  warrants  of  the  Secretary  of  State, 
in  which,  the  plaintiff's  counsel  having  asserted,  and  the  defendant's 
counsel  having  denied,  the  right  to  recover  "exemplary  damages,"  the 
Chief  Justice  instructed  the  jury  as  follows:  "I  have  formerly  de- 
livered it  as  my  opinion  on  another  occasion,  and  I  still  continue  of 
the  same  mind,  that  a  jury  have  it  in  their  power  to  give  damages  for 
more  than  the  injury  received.  Damages  are  designed,  not  only  as 
a  satisfaction  to  the  injured  person,  but  likewise  as  a  punishment  to 
the  guilty,  to  deter  from  any  such  proceeding  for  the  future,  and  as 
a  proof  of  the  detestation  of  the  jury  to  the  action  itself."  Wilkes  v. 
Wood,  Lofft,  1,  18,  19,  19  Howell,  S.  T.  1153,  1167.  See,  also,  Huckle 
V.  Money,  2  Wils.  205,  207;    Sayer,  Dam.  218,  221.     The  recovery 

>o  Part  of  the  opinion  is  omitted. 
Gilb.Dam.— 8 


114  DISCRETIONARY  DAMAGES.  (Part   4 

of  damages,  beyond  compensation  for  the  injury  received,  by  way  of 
punishing  the  guilty,  and  as  an  example  to  deter  others  from  offending 
in  like  manner,  is  here  clearly  recognized. 

In  this  court  the  doctrine  is  well  settled  that  in  actions  of  tort  the 
jury,  in  addition  to  the  sum  awarded  by  way  of  compensation  for  the 
plaintiff's  injury,  may  award  exemplary,  punitive,  or  vindictive  dam- 
ages, sometimes  called  "smart  money,"  if  the  defendant  has  acted 
wantonly,  or  oppressively,  or  with  such  malice  as  implies  a  spirit  of 
mischief  or  criminal  indifference  to  civil  obligations ;  but  such  guilty 
intention  on  the  part  of  the  defendant  is  required  in  order  to  charge 
him  with  exemplary  or  punitive  damages.  The  Amiable  Nancy,  3 
Wheat.  546,  558,  559,  4  L.  Ed.  456;  Day  v.  Woodworth,  13  How. 
363,  371,  14  L.  Ed.  181 ;  Railroad  Co.  v.  Quigley,  21  How.  202,  213, 
214,  16  L.  Ed.  73.     *     *     * 

Exemplary  or  punitive  damages,  being  awarded,  not  by  way  of 
compensation  to  the  sufferer,  but  by  way  of  punishment  of  the  offen- 
der, and  as  a  warning  to  others,  can  only  be  awarded  against  one  who 
has  participated  in  the  offense.  A  principal,  therefore,  though  of 
course  liable  to  make  compensation  for  injuries  done  by  his  agent 
within  the  scope  of  his  employment,  cannot  be  held  liable  for  exem- 
plary or  punitive  damages,  merely  by  reason  of  wanton,  oppressive,  or 
malicious  intent  on  the  part  of  the  agent.  This  is  clearly  shown  by 
the  judgment  of  this  court  in  the  case  of  The  Amiable  Nancy,  3  Wheat. 
546,  4  L.  Ed.  456. 

In  that  case,  upon  a  libel  in  admiralty  by  the  owner,  master,  super- 
cargo, and  crew  of  a  neutral  vessel  against  the  owners  of  an  American 
privateer,  for  illegally  and  wantonly  seizing  and  plundering  the  neu- 
tral vessel  and  maltreating  her  officers  and  crew,  Mr.  Justice  Story 
speaking  for  the  court,  in  1818,  laid  down  the  general  rule  as  to  the 
liability  for  exemplary  or  vindictive  damages  by  way  of  punishment, 
as  follows:  "Upon  the  facts  disclosed  in  the  evidence,  this  must  be 
pronounced  a  case  of  gross  and  wanton  outrage,  without  any  just  prov- 
ocation or  excuse.  Under  such  circumstances,  the  honor  of  the  coun- 
try and  the  duty  of  the  court  equally  require  that  a  just  compensation 
should  be  made  to  the  unoffending  neutrals  for  all  the  injuries  and 
losses  actually  sustained  by  them ;  and,  if  this  were  a  suit  against  the 
original  wrongdoers,  it  might  be  proper  to  go  yet  farther,  and  visit 
upon  them,  in  the  shape  of  exemplary  damages,  the  proper  punish- 
ment which  belongs  to  such  lawless  misconduct.  But  it  is  to  be  con- 
sidered that  this  is  a  suit  against  the  owners  of  the  privateer,  upon 
whom  the  law  has,  from  motives  of  policy,  devolved  a  responsibility 
for  the  conduct  of  the  officers  and  crew  employed  by  them,  and  yet, 
from  the  nature  of  the  service,  they  can  scarcely  ever  be  able  to  se- 
cure to  themselves  an  adequate  indemnity  in  cases  of  loss.  They  are 
innocent  of  the  demerit  of  this  transaction,  having  neither  directed  it, 
nor  countenanced  it,  nor  participated  in  it  in  the  slightest  degree.  Un- 
der such  circumstances,  we  are  of  the  opinion  that  they  are  bound  to 


Ch.  3)  EXEMTLAKY    DAMAGES.  115 

repair  all  the  real  injuries  and  personal  wrongs  sustained  by  the  libel- 
ants, but  they  are  not  bound  to  the  extent  of  vindictive  damages." 
3  Wheat.  558,  559,  4  L.  Ed.  456. 

The  rule  thus  laid  down  is  not  peculiar  to  courts  of  admiralty;  for, 
as  stated  by  the  same  eminent  judge  two  years  later,  those  courts  pro- 
ceed, in  cases  of  tort,  upon  the  same  principles  as  courts  of  common 
law,  in  allowing  exemplary  damages,  as  well  as  damages  by  way  of 
compensation  or  remuneration  for  expenses  incurred,  or  injuries  or 
losses  sustained,  by  the  misconduct  of  the  other  party.  IManufacturinr;- 
Co.  V.  Fiske,  2  Mason,  119,  121,  Fed.  Cas.  No.  1,681.  In  Keene  v. 
Lizardi,  8  La.  26,  33,  Judge  Martin  said:  "It  is  true,  juries  some- 
times very  properly  give  what  is  called  'smart  money.'  They  are 
often  warranted  in  giving  vindictive  damages  as  a  punishment  in- 
flicted for  outrageous  conduct;  but  this  is  only  justifiable  in  an  ac- 
tion against  the  wrongdoer,  and  not  against  persons  who,  on  account 
of  their  relation  to  the  offender,  are  only  consequentially  liable  for  his 
acts,  as  the  principal  is  responsible  for  the  acts  of  his  factor  or  agent." 
*     *     * 

The  rule  has  the  same  application  to  corporations  as  to  individuals. 
This  court  has  often,  in  cases  of  this  class,  as  well  as  in  other  cases, 
affirmed  the  doctrine  that  for  acts  done  by  the  agents  of  a  corporation, 
in  the  course  of  its  business  and  of  their  employment,  the  corporation 
is  responsible  in  the  same  manner  and  to  the  same  extent  as  an  individ- 
ual is  responsible  under  similar  circumstances.     *     *     * 

A  corporation  is  doubtless  liable,  like  an  individual,  to  make  com- 
pensation for  any  tort  committed  by  an  agent  in  the  course  of  his 
employment,  although  the  act  is  done  wantonly  and  recklessly,  or 
against  the  express  orders  of  the  principal.  Railroad  Co.  v.  Derby,  14 
How.  468,  14  L.  Ed.  503 ;  Steamboat  Co.  v.  Brockett,  121  U.  S.  637, 
7  Sup.  Ct.  1039,  30  L.  Ed.  1049;  Howe  v.  Newmarch,  12  Allen 
(Mass.)  49;  Ramsden  v.  Railroad  Co.,  104  Mass.  117,  6  Am.  Rep. 
200.  A  corporation  may  even  be  held  liable  for  a  libel,  or  a  malicious 
prosecution,  by  its  agent  within  the  scope  of  his  employment ;  and  the 
malice  necessary  to  support  either  action,  if  proved  in  the  agent,  may 
be  imputed  to  the  corporation.  *  *  *  But,  as  well  observed  by 
Mr.  Justice  Field,  now  Chief  Justice  of  Massachusetts:  "The  logi- 
cal difficulty  of  imputing  the  actual  malice  or  fraud  of  an  agent  to  his 
principal  is  perhaps  less  when  the  principal  is  the  person  than  when  it 
is  a  corporation ;  still  the  foundation  of  the  imputation  is  not  that  it 
is  inferred  that  the  principal  actually  participated  in  the  malice  or 
fraud,  but,  the  act  having  been  done  for  his  benefit  by  his  agent  acting 
within  the  scope  of  his  employment  in  his  business,  it  is  just  that  he 
should  be  held  responsible  for  it  in  damages."  Lothrop  v.  Adams,  133 
Mass.  471,  480,  481,  43  Am.  Rep.  528. 

Though  the  principal  is  liable  to  make  compensation  for  a  libel  pub- 
lished or  a  malicious  prosecution  instituted  by  his  agent,  he  is  not 
liable  to  be  punished  by  exemplary  damages  for  an  intent  in  which  he 


116  DISCRETIONARY  DAMAGES.  (Part   4 

did  not  participate.  In  Detroit  Daily  Post  Co.  v.  McArthur,  16  Mich. 
447,  in  Eviston  v.  Cramer,  57  Wis.  570,  15  N.  W.  760,  and  in  Haines 
V.  Schultz,  50  N.  J.  Law,  481,  14  Atl.  488,  above  cited,  it  was  held  that 
the  publisher  of  a  newspaper,  when  sued  for  a  libel  published  therein 
by  one  of  his  reporters  without  his  knowledge,  was  liable  for  compen- 
satory damages  only,  and  not  for  punitive  damages,  unless  he  approved 
or  ratified  the  publication;  and  in  Haines  v.  Schultz  the  Supreme  Court 
of  New  Jersey  said  of  punitive  damages:  "The  right  to  award  them 
rests  primarily  upon  the  single  ground — wrongful  motive."  "It  is 
the  wrongful  personal  intention  to  injure  that  calls  forth  the  penalty. 
To  this  wrongful  intent  knowledge  is  an  essential  prerequisite."  "Ab- 
sence of  all  proof  bearing  on  the  essential  question,  to  wit,  defendant's 
motive,  cannot  be  permitted  to  take  the  place  of  evidence,  without 
leading  to  a  most  dangerous  extension  of  the  doctrine  respondeat  supe- 
rior." 50  N.  J.  Law,  484,  485,  14  Atl.  488.  Whether  a  principal  can 
be  criminally  prosecuted  for  a  libel  published  by  his  agent  without  his 
participation  is  a  question  on  which  the  authorities  are  not  agreed; 
and,  where  it  has  been  held  that  he  can,  it  is  admitted  to  be  an  anomaly 
in  the  criminal  law.     *     *     * 

No  doubt,  a  corporation,  like  a  natural  person,  may  be  held  liable 
in  exemplary  or  punitive  damages  for  the  act  of  an  agent  within  the 
scope  of  his  employment,  provided  the  criminal  intent,  necessary  to 
warrant  the  imposition  of  such  damages,  is  brought  home  to  the  cor- 
poration.    *     *     * 

Independently  of  this,  in  the  case  of  a  corporation,  as  of  an  individ- 
ual, if  any  wantonness  or  mischief  on  the  part  of  the  agent,  acting 
within  the  scope  of  his  employment,  causes  additional  injury  to  the 
plaintiff  in  body  or  mind,  the  principal  is,  of  course,  Hable  to  make  com- 
pensation for  the  whole  injury  suffered.     *     *     * 

In  the  case  at  bar,  the  defendant's  counsel  having  admitted  in  open 
court  "that  the  arrest  of  the  plaintiff  was  wrongful,  and  that  he  was 
entitled  to  recover  actual  damages  therefor,"  the  jury  were  rightly  in- 
structed that  he  was  entitled  to  a  verdict  which  would  fully  compen- 
sate him  for  the  injuries  sustained,  and  that  in  compensating  him  the 
jury  were  authorized  to  go  beyond  his  outlay  in  and  about  this  suit, 
and  to  consider  the  humiliation  and  outrage  to  which  he  had  been  sub- 
jected by  arresting  him  publicly  without  warrant  and  without  cause, 
and  by  the  conduct  of  the  conductor,  such  as  his  remark  to  the  plain- 
tiff's wife. 

But  the  court,  going  beyond  this,  distinctly  instructed  the  jury  that, 
"after  agreeing  upon  the  amount  which  will  fully  compensate  the 
plaintiff  for  his  outlay  and  injured  feelings,"  they  might  "add  some- 
thing by  way  of  punitive  damages  against  the  defendant,  which  is 
sometimes  called  'smart  money,'  "  if  they  were  "satisfied  that  the  con- 
ductor's conduct  was  illegal,  wanton,  and  oppressive." 

The  jury  were  thus  told,  in  the  plainest  terms,  that  the  corporation 
was  responsible  in  punitive  damages  for  wantonness  and  oppression 


Ch.  3)  EXEMPLARY  DAMAGES.  H*^ 

on  the  part  of  the  conductor,  although  not  actually  participated  in  by 
the  corporation.  This  ruling  appears  to  us  to  be  inconsistent  with  the 
principles  above  stated,  unsupported  by  any  decision  of  this  court, 
and    opposed    to   the    preponderance   of    well-considered    precedents. 

*  *  :i: 

The  president  and  general  manager,  or,  in  his  absence,  the  vice  pres- 
ident in  his  place,  actually  wielding  the  whole  executive  power  of  the 
corporation,  may  well  be  treated  as  so  far  representing  the  corpora- 
tion and  identified  witl;i  it  that  any  wanton,  malicious,  or  oppressive 
intent  of  his,  in  doing  wrongful  acts  in  behalf  of  the  corporation  to 
the  injury  of  others,  may  be  treated  as  the  intent  of  the  corporation 
itself ;  but  the  conductor  of  a  train,  or  other  subordinate  agent  or  serv- 
ant of  a  railroad  corporation,  occupies  a  very  different  position,  and  is 
no  more  identified  with  his  principal,  so  as  to  affect  the  latter  with 
his  own  unlawful  and  criminal  intent,  than  any  agent  or  servant  stand- 
ing in  a  corresponding  relation  to  natural  persons  carrying  on  a  man- 
ufactory, a  mine,  or  a  house  of  trade  or  commerce. 

The  law  applicable  to  this  case  has  been  found  nowhere  better  stat- 
ed than  by  Mr.  Justice  Brayton,  afterwards  Chief  Justice  of  Rhode 
Island,  in  the  earliest  reported  case  of  the  kind,  in  which  a  passenger 
sued  a  railroad  corporation  for  his  wrongful  expulsion  from  a  train 
by  the  conductor,  and  recovered  a  verdict,  but  excepted  to  an  instruc- 
tion to  the  jury  that  "punitive  or  vindictive  damages,  or  smart  money, 
were  not  to  be  allowed  as  against  the  principal,  unless  the  principal 
participated  in  the  wrongful  act  of  the  agent,  expressly  or  impliedly, 
by  his  conduct  authorizing  it  or  approving  it,  either  before  or  after 
it  was  committed."    This  instruction  was  held  to  be  right,  for  the  fol- 
lowing reasons :  "In  cases  where  punitive  or  exemplary  damages  have 
been  assessed,  it  has  been  done,  upon  evidence  of  such  willfulness,  reck- 
lessness, or  wickedness,  on  the  part  of  the  party  at  fault,  as  amounted 
to  criminality,  which  for  the  good  of  society  and  warning  to  the  in- 
dividual, ought  to  be  punished.     If  in  such  cases,  or  in  any  case  of  a 
civil  nature,  it  is  the  policy  of  the  law  to  visit  upon  the  offender  such 
exemplary  damages  as  will  operate  as  punishment,  and  teach  the  les- 
son of  caution  to  prevent  a  repetition  of  criminality,  yet  we  do  not 
see  how  such  damages  can  be  allowed,  where  the  principal  is  prose- 
cuted for  the  tortious  act  of  his  servant,  unless  there  is  proof  in  the 
cause  to  implicate  the  principal  and  make  him  particeps  criminis  of 
his  agent's  act.     No  man  should  be  punished  for  that  of  which  he  is 
not  g-uilty."     "Where  the  proof  does  not  implicate  the  principal,  and, 
however  wicked  the  servant  may  have  been,  the  principal  neither  ex- 
pressly nor  impliedly  authorizes  or  ratifies  the  act,  and  the  criminali- 
ty of  it  is  as  much  against  him  as  against  any  other  member  of  socie- 
ty, we  think  it  is  quite  enough  that  he  shall  be  liable  in  compensatory 
damages  for  the  injury  sustained  in  consequence  of  the  wrongful  act 
of  a  person  acting  as  his  servant."     Hagan  v.  Railroad  Co.,  3  R.  I. 
88,  91,  62  Am.  Dec.  377.     *     *     * 


118  DISCRETIONARY  DAMAGES.  (Part   4 

It  must  be  admitted  that  there  is  a  wide  divergence  in  the  decisions 
of  the  state  courts  upon  this  question,  and  that  corporations  have  been 
held  Hable  for  such  damages  under  similar  circumstances  in  New 
Hampshire,  in  Maine,  and  in  many  of  the  Western  and  Southern 
states.  But  of  the  three  leading  cases  on  that  side  of  the  question, 
Hopkins  v.  Railroad  Co.,  36  N.  H.  9,  73  Am.  Dec.  287,  can  hardly  be 
reconciled  with  the  later  decisions  in  Fay  v.  Parker,  53  N.  H.  342,  16 
Am.  Rep.  270,  and  Bixby  v.  Dunlap,  56  N.  H.  456,  22  Am.  Rep.  475 ; 
and  in  Goddard  v.  Railway  Co.,  57  Me.  202,  228,  2  Am.  Rep.  39,  and 
Railway  Co.  v.  Dunn,  19  Ohio  St.  162,  590,  2  Am.  Rep.  382,  there  were 
strong  dissenting  opinions.  In  many,  if  not  most,  of  the  other  cases, 
either  corporations  were  put  upon  different  grounds  in  this  respect 
from  other  principals,  or  else  the  distinction  between  imputing  to  the 
corporation  such  wrongful  act  and  intent  as  would  render  it  liable  to 
make  compensation  to  the  person  injured,  and  imputing  to  the  corpo- 
ration the  intent  necessary  to  be  established  in  order  to  subject  it  to 
exemplary  damages  by  way  of  punishment,  was  overlooked  or  dis- 
regarded. 

Most  of  the  cases  on  both  sides  of  the  question,  not  specifically  cit' 
ed  above,  are  collected  in  1  Sedg.  Dam.  (8th  Ed.)  §  380. 

In  the  case  at  bar,  the  plaintiff  does  not  appear  to  have  contended 
at  the  trial,  or  to  have  introduced  any  evidence  tending  to  show,  that 
the  conductor  was  known  to  the  defendant  to  be  an  unsuitable  person 
in  any  respect,  or  that  the  defendant  in  any  way  participated  in,  ap- 
proved, or  ratified  his  treatment  of  the  plaintiff;  nor  did  the  instruc- 
tions given  to  the  jury  require  them  to  be  satisfied  of  any  such  fact 
before  awarding  punitive  damages;  but  the  only  fact  which  they  were 
required  to  find,  in  order  to  support  a  claim  for  punitive  damages 
against  the  corporation,  was  that  the  conductor's  illegal  conduct  was 
wanton  and  oppressive.  For  this  error,  as  we  cannot  know  how  much 
of  the  verdict  was  intended  by  the  jury  as  a  compensation  for  the 
plaintiff's  injury,  and  how  much  by  way  of  punishing  the  corporation 
for  an  intent  in  which  it  had  no  part,  the  judgment  must  be  reversed. 
«     «     *  11 


CRAKER  v.  CHICAGO  &  N.  W.  RY.  CO. 

(Supreme  Court  of  Wisconsin,  1S75.    36  Wis.  657,  17  Am.  Rep.  504.) 

Action  for  insulting,  violent,  and  abusive  acts  alleged  to  have  been 
■done  to  the  plaintiff  by  the  conductor  of  one  of  defendant's  trains 
while  plaintiff  was  a  passenger  on  such  train.  Answer,  a  general  de- 
nial. The  plaintiff's  testimony  showed  that  she  was  about  20  years 
old  and  a  school  teacher.  She  missed  a  morning  passenger  train  at 
Reedsburgli  for  Baraboo,  and  instead  took  an  afternoon  freight  and 

11  See  articles  in  7  Harv.  Law  Rev.  45,  and  5  Harv,  Law  Rev.  21. 


vJi  ■ 
Ch.  3)  EXEMPLARY  DAMAGES.  119 

accommodation  train  under  the  guidance  of  the  station  agent,  paying 
full  fare  and  being  given  a  seat  in  an  office  chair  in  the  car.  No  other 
person  was  present  when  the  conductor,  after  making  overtures  which 
were  repulsed,  suddenly  and  violently  seized  the  plaintiff,  put  his  arms 
about  her,  and  repeatedly  kissed  her  against  her  urgent  protests.  She 
continued  in  the  car  until  she  reached  her  destination.  The  conductor, 
on  plaintiff's  complaint,  was  subsequently  arrested  and  fined,  and  was 
immediately  discharged  from  the  employment  of  the  defendant  com- 
pany. 

Plaintifif  had  a  verdict  for  $1,000  damages,  and  defendant  appeals. 

Ryan,  J.  ^^  *  *  *  It  is  said  in  Railroad  Co.  v.  Finney,  10  Wis. 
388,  that  the  plaintifif  in  such  a  case  is  not  entitled  to  exemplary  dam- 
ages against  the  principal  for  the  malicious  act  of  the  agent,  without 
proof  that  the  principal  expressly  authorized  or  confirmed  it.  With- 
out now  discussing  what  would  or  would  not  be  competent  or  suffi- 
cient evidence  of  such  authority  or  confirmation,  we  may  say  that  we 
have,  on  very  mature  consideration,  concluded  that  the  rule  in  Rail- 
road Co.  V.  Finney  is  the  better  and  safer  rule.  We  are  aware  that 
there  is  authority,  and  perhaps  the  greater  weight  of  authority,  for 
exemplary  damages  in  such  cases,  without  privity  of  the  principal  to 
the  malice  of  the  agent;  and  that  reasons  of  public  policy  are  strong- 
ly urged  in  support  of  such  a  rule.  Goddard  v.  Railroad  Co.,  57  Ale.. 
202,  2  Am.  Rep.  39 ;  Sanford  v.  Railroad  Co.,  23  N.  Y.  343,  80  Am. 
Dec.  286 ;  Railroad  Co.  v.  Rodgers,  38  Ind.  116,  10  Am.  Rep.  103 ; 
and  other  cases.  But  we  adhere  to  what  is  said  on  that  point  in  Rail- 
road Co.  V.  Finney.  We  think  that  in  justice  there  ought  to  be  a  dif- 
ference in  the  rule  of  damages  against  principals  for  torts  actually 
committed  by  agents,  in  cases  where  the  principal  is,  and  in  cases 
where  the  principal  is  not,  a  party  to  the  malice  of  the  agent.  In  the 
former  class  of  cases,  the  damages  go  upon  the  malice  of  the  princi- 
pal; malice  common  to  principal  and  agent.  In  the  latter  class  of 
cases,  the  recovery  is  for  the  act  of  the  principal  through  the  agent,  in 
malice  of  the  agent  not  shared  by  the  principal ;  the  principal  being 
responsible  for  the  act,  but  not  for  the  motive  of  the  agent.  In  the 
former  class,  the  malice  of  the  principal  is  actual ;  in  the  latter,  it 
must  at  most  be  constructive.  And  we  are  inclined  to  think  that  the 
justice  of  the  rule  accords  wath  public  policy.  Responsibility  for 
compensatory  damages  will  be  a  sufficient  admonition  to  carrier  cor- 
porations to  select  competent  and  trustworthy  officers.  And  responsi- 
bility for  exemplary  damages,  in  cases  of  ratification,  will  be  an  ad- 
monition to  prompt  dismissal  of  ofifcnding  officers,  as  their  retention 
might  well  be  held  evidence  of  ratification.  The  interest  of  these 
corporations  and  of  the  public,  in  such  matters,  should  be  made  alike 
as  far  as  possible.  And  we  hold  the  rule,  as  we  have  stated  it,  the 
justest  and  safest  for  both. 

12  Tiirt  of  the  opinion  is  omitted,  and  the  statement  of  facts  Is  rewritten. 


120  DISCRETIONARY  DAMAGES.  (Part  4 

It  was  also  said  in  Railroad  Co.  v.  Finney  that  the  action  is  in  tort ; 
but  that,  in  cases  not  calling  for  exemplary  damages,  the  rule  of  dam- 
ages should  be  as  in  actions  ex  contractu,  the  actual  loss  sustained  by 
reason  of  the  misconduct  of  the  conductor. 

This  was  said  arguendo,  without  attempt  at  close  connection  or  ex- 
act statement;  and  it  is  not  altogether  easy  to  ascertain  its  precise 
meaning.  If  it  mean,  as  it  may,  that  in  such  cases  the  recovery  against 
the  principal  for  the  tort  committed  by  the  agent  is  limited  to  tne 
mere  pecuniary  loss,  we  cannot  sanction  it.  Such  a  rule  would  be  in 
conflict  with  all  known  rules  of  damages  in  actions  of  tort  for  person- 
al wrongs ;  and  would  be  almost  equivalent  to  a  license  to  officers  of 
railroad  trains  and  steamboats  to  insult  and  outrage  passengers  com- 
mitted to  their  care  for  courtesy  and  protection;  mischievous  alike 
to  the  companies  and  the  public.  But  if  it  mean,  as  it  may  and  proba- 
bly was  intended,  compensatory  damages  as  in  like  actions  for  other 
personal  torts,  we  affirm  and  adopt  it  as  the  rule  of  the  court.  We  see 
no  reason  for  distinguishing  such  actions  from  others  of  like  character, 
in  the  rule  of  damages. 

In  Wilson  v.  Young,  31  Wis.  574,  Lyon,  J.,  inadvertently  fell  into 
some  subtleties  found  in  ]\Ir.  Sedgwick's  excellent  work,  which  appear 
to  us  all  now  to  confuse  compensatory  and  exemplary  damages.  The 
distinction  was  not  in  that  case,  and  the  passage  in  Sedgwick  was  cited 
and  opproved,  as  such  high  authorities  often  are,  without  sufficient 
consideration.     We  all  now  concur  in  disapproving  the  distinction. 

In  giving  the  elements  of  damages,  Mr.  Sedgwick  distinguishes  be- 
tween "the  mental  suffering  produced  by  the  act  or  omission  in  ques- 
tion, vexation,  anxiety,"  which  he  holds  to  be  ground  for  compensa- 
tory damages,  and  the  "sense  of  wrong  or  insult,  in  the  sufferer's 
breast,  from  an  act  dictated  by  a  spirit  of  willful  injustice,  or  by  a 
deliberate  intention  to  vex,  degrade  or  insult,"  which  he  holds  to  be 
ground  for  exemplary  damages  only.     Sedgwick's  Meas.  Dam.  35. 

Mr.  Sedgwick  himself  says  that  the  rule  in  favor  of  exemplary  dam- 
ages "blends  together  the  interests  of  society  and  the  aggrieved  indi- 
vidual, and  gives  damages  not  only  to  recompense  the  sufferer,  but  to 
punish  the  offender"  (Id.  38)  ;  and,  following  him,  this  court  held  in 
the  leading  case  of  McWilliams  v.  Bragg,  3  Wis.  424,  and  has  often 
since  reaffirmed,  that  exemplary  damages  are  "in  addition  to  actual 
damages." 

In  actions  of  tort,  as  a  rule,  when  the  plaintiff's  right  to  recover  is 
established,  he  is  entitled  to  full  compensatory  damages.  When  prop- 
er ground  is  established  for  it,  he  is  also  entitled  to  exemplary  dam- 
ages, in  addition.  The  former  are  for  the  compensation  of  the  plain- 
tiff; the  latter  for  the  punishment  of  the  defendant  and  for  example 
to  others.  This  is  Sedgwick's  blending  together  of  the  interest  of 
society  and  the  interest  of  plaintiff.  And  it  is  plain  that  there  can 
not  well  be  common  ground  for  the  two.  The  injury  to  the  plaintiff 
is  the  same,  and  for  that  he  is  entitled  to  full  compensation,  malice 


Ch.  3)  EXEMTLAUY   DAMAGES.  121 

or  no  malice.  If  malice  be  established,  then  the  interest  of  society 
comes  in,  to  punish  the  defendant  and  deter  others  in  like  cases  by 
adding  exemplary  to  compensatory  damages. 

AVe  need  add  no  authority  to  Mr.  Sedgwick's  that,  in  actions  for 
personal  tort,  mental  suffering,  vexation  and  anxiety  are  subject  of 
compensation  in  damages. )  And  it  is  difficult  to  see  how  these  are  to 
be  distinguished  from  the  sense  of  wrong  and  insult  arising  from  in- 
justice and  intention  to  vex  and  degrade.  The  appearance  of  ma- 
licious intent  may  indeed  add  to  the  sense  of  wrong;  and  equally, 
whether  such  intent  be  really  there  or  not.  But  that  goes  to  mental 
suffering  and  mental  suffering  to  compensation.  So  it  seems  to  us. 
But  if  there  be  a  subtle,  metaphysical  distinction  which  we  cannot  see, 
what  human  creature  can  penetrate  the  mysteries  of  his  own  sensa- 
tions, and  parcel  out  separately  his  mental  suffering  and  his  sense  of 
wrong — so  much  for  compensatory,  and  so  much  for  vindictive  dam- 
ages? And  if  one  cannot  scrutinize  the  anatomy  of  his  own,  how  im- 
possible to  dissect  the  mental  agonies  of  another,  as  a  surgeon  does 
corporal  muscles.  If  it  be  possible,  juries  are  surely  not  metaphysi- 
cians to  do  it.  (  And  we  must  hold  that  all  mental  suffering  directly 
consequent  upon  tort,  irrespective  of  all  such  inscrutable  distinctions, 
is  ground  for  compensatory  damages  in  an  action  for  the  tort.)  *    *    * 

The  respondent  appears  to  be  of  respectable  rank  in  life  and  of  suf- 
ficient culture  to  qualify  her  for  teaching  in  public  schools.  In  the 
painful  trial  of  character  and  temper  of  the  scene  which  culminated  in 
the  assault,  in  her  action  and  demeanor  following  upon  it,  in  the  in- 
terview intruded  upon  her  by  the  appellant,  and  in  the  embarrassment 
of  her  examination  on  the  trial,  she  appears  to  have  acted  with  great 
propriety,  free  from  all  exaggeration  and  affectation.  She  appears 
in  the  record  to  be  a  person  who  would  feel  such  a  wrong  keenly. 
She  was  entitled  to  liberal  damages  for  her  terror  and  anxiety,  her 
outraged  feeling  and  insulted  virtue,  for  all  her  mental  humiliation  and 
suffering.  We  cannot  say  that  the  damages  are  excessive.  We  might 
have  been  better  satisfied  with  a  verdict  for  less.  But  it  is  not  for  us. 
it  was  for  the  jury,  to  fix  the  amount.  And  they  are  not  so  large  that 
we  can  say  that  they  are  unreasonable.  Who  can  be  found  to  say 
that  such  an  amount  would  be  in  excess  of  compensation  to  his  own 
or  his  neighbor's  wife  or  sister  or  daughter?  Hewlett  v.  Cruchley,  5 
Taunt.  277.    We  cannot  say  that  it  is  to  the  respondent. 

The  judgment  of  the  court  below  is  affirmed. 


122  DISCRETIONARY  DAMAGES.  (Part   4 


KRUG  V.   PITAS  S   et  al. 

(Court  of  Appeals  of   New  York,   1900.     1G2  N.   Y.   154,   56  N,   E.   526, 
76  Am.  St.  Rep.  317.) 

This  is  an  action  to  recover  damages  alleged  to  have  been  caused 
by  the  publication  of  an  article  concerning  the  plaintiff  in  a  newspaper 
published  in  the  Polish  language  at  the  city  of  Buffalo,  known  as 
"Polak  W.  Ameryce,"  or  the  "Pole  in  America."  The  defendant  Pi- 
tass  was  the  proprietor  of  said  newspaper,  the  defendant  Slisz  the 
editor,  and  the  article  in  question  was  a  communication  signed  by  the 
other  defendant,  Smeja.  The  jury  rendered  a  verdict  in  favor  of  the 
plaintiff  for  $6,250,  and,  the  judgment  entered  thereon  having  been 
affirmed  in  the  appellate  division  by  a  divided  vote,  the  defendants  ap- 
pealed to  this  court. 

Vann,  J.^^  The  article  in  question,  according  to  either  translation, 
was  libelous  upon  its  face  because  it  charged  the  plaintiff  with  a  want 
of  professional  ability  and  integrity,  and  thus  endangered  the  gain  de- 
rived from  his  vocation.  Cruikshank  v.  Gordon,  118  N.  Y.  178,  23  N. 
E.  457 ;  Mattice  v.  Wilcox,  147  N.  Y.  624,  42  N.  E.  270 ;  Flood,  Libel, 
114.  Referring  to  him  as  a  physician,  it  called  him  a  blockhead  or 
fool,  and  appealed  to  all  the  Poles  in  Buffalo  not  to  intrust  themselves 
or  their  families  to  his  professional  care,  when  he  so  hated  them  that 
he  would  not  help  them  if  he  could.  *  *  *  'x^he  article  was  ac- 
tionable withovit  proof  of  any  damages,  for  the  law  imputes  malice 
to  the  defendants,  and  presumes  that  damages  were  sustained  by  the 
plaintiff  from  the  bare  act  of  publication.     *     *     * 

While  the  plaintiff  was  thus  entitled  to  recover  on  account  of  im- 
plied malice,  his  damages,  without  further  proof,  would  be  limited  to 
such  an  amount  as  would  fairly  compensate  him  for  the  actual  injury 
sustained.  (  In  order  to  recover  punitive  damages  also,  it  was  necessary 
for  him  to  furnish  evidence  of  express  malice,  or  malice  in  fact,  as 
distinguished  from  malice  implied.  Implied  malice,  in  an  action  for 
libel,  consists  in  publishing,  without  justifiable  cause,  that  which  is 
injurious  to  the  character  of  another.  It  is  a  presumption  drawn  by 
the  law  from  the  simple  fact  of  publication.  Express  malice  consists 
in  such  a  publication  from  ill  will,  or  some  wrongful  motive,  implying 
a  willingness  or  intent  to  injure,  in  addition  to  the  intent  to  do  the  un- 
lawful act.  It  requires  affirmative  proof,  beyond  the  act  of  publish- 
ing, indicating  ill  feeling,  or  such  want  of  feeling  as  to  impute  a  bad 
motive.^  It  does  not  become  an  issue,  when  the  article  is  libelous  on 
its  face,  unless  punitive  damages  are  claimed,;  In  order  to  establish 
express  malice,  the  plaintiff  was  allowed  to  show,  as  against  all  the  de- 
fendants, that  several  years  prior  to  the  publication  the  defendant 
Pitass  had  made  remarks  about  him  expressing  contempt  and  ill  will. 
There  was  no  connection  between  these  remarks  and  the  other  def end- 
is  Part  of  the  opinion  is  omitted. 


Ql.  3)  EXEMPLARY  DAMAGES.  123 

ants,  who  neither  heard  them  nor  ever  heard  of  them,  so  far  as  ap- 
pears. It  is  undisputed  that  Pitass  knew  nothing  about  the  article 
until  some  time  after  it  had  been  published.  He  did  not,  directly  or 
indirectly,  cause  or  consent  to  its  publication.  He  was  liable  only  be- 
cause he  owned  the  newspaper,  and  was  responsible  for  the  acts  of  his 
agents  in  publishing  it.  His  previous  statements  did  not  cause  the 
publication,  nor  have  any  effect  upon  it.  Between  those  statements 
and  the  fact  of  publication  there  was  no  connection,  and  no  relation 
of  cause  and  effect.  They  did  not  enter  into,  or  become  part  of,  or 
have  any  bearing  upon,  the  wrong  of  which  the  plaintiff  complains. 
As  the  article  would  have  been  published  if  they  had  not  been  made, 
they  were  immaterial,  for  they  did  not  touch  the  wrongful  act,  and 
could  not  aggravate  the  damages. 

,  Punitive  damages,  which  are  in  excess  of  the  actual  loss,  are  allow- 
ed where  the  wrong  is  aggravated  by  evil  motives  in  order  to  pun- 
ish the  wrongdoer  for  his  misconduct,  and  furnish  a  wholesome  ex- 
ample.    As  was  said  by  the  Supreme  Court  of  the  United  States  in 
an  important  case:    "Whenever  the   injury  complained  of  has  been 
inflicted  maliciously  or  wantonly,  and  with  circumstances  of  contume- 
ly or  indignity,  the  jury  are  not  limited  to  the  ascertainment  of  a  sim- 
ple compensation  for  the  wrong  committed  against  the  aggrieved  per- 
son.   But  the  malice  spoken  of  in  this  rule  is  not  merely  the  doing  of 
an  unlawful  or  injurious  act.    The  word  implies  that  the  act  complain- 
ed of  was  conceived  in  the  spirit  of  mischief,  or  of  criminal  indiffer- 
ence to  civil  obligations."    Railroad  Co.  v.  Quigley,  21  Hoxy.  202,  213, 
16  L.  Ed.  73.    Did  Pitass  inflict  the  injury  upon  the  plaintiff  malicious- 
ly, when  he  knew  nothing  about  it  at  the  time  it  was  done,  and  was 
orily  liable  as  owner  of  the  newspaper?    Did  he,  "in  a  spirit  of  mis- 
chief," conceive  the  act  done  by  his  agent  without  his  knowledge? 
Could  his  malicious  remarks,  made  in  1890,  leap  forward,  and,  without 
knowledge  or  action  on  his  part,  become  blended  with  the  act  of  his 
agent  in  189-1?    Did  his  agent,  the  editor,  conceive  the  act  "in  a  spirit 
of  mischief,"  which  never  entered  his  own  mind,  but  existed  at  a  re- 
mote period  in  the  mind  of  another?     Did  the  writer  of  the  article 
act  under  the  influence  of  words  neither  spoken  in  his  presence  nor 
communicated  to  him  in  any  way?   (In  an  action  for  a  tort  there  can 
be  no  recovery  of  punitive  damages'' for  general  malice,  but  only  for 
such  particular  malice  as  existed  when  the  tortious  act  was  done,  and 
which  had  some  influence  in  causing  it  to  be  done.)    *     *     *     More- 
over, the  malice  of  one  defendant  cannot  be  imputed  to  another  with- 
out connecting  proof.     "If  two  be  sued,  the  motive  of  one  must  not 
be  allowed  to  aggravate  the  damages  against  the  other.     Nor  should 
the  improper  motive  of  an  agent  be  matter  of  aggravation  against 
his  principal."    Bigelow's  Odgers,  Libel,  290.     *     *     * 

Neither  the  author  nor  editor  was  a  party  to  the  malice  of  the  pub- 
lisher, and  his  malice  did  no  harm,  because  it  had  no  effect  upon  the 
result.     While  he  was  responsible  for  their  acts,  they  were  not  re- 


124  DISCRETIONARY  DAMAGES.  (Part   4 

sponsible  for  his  motives,  of  which  they  had  no  knowledge.  He  was 
not  responsible  for  his  motives  in  connection  with  their  acts,  because 
there  was  no  connection.  The  malice  proved  in  this  case  did  not 
cause  the  conduct  complained  of.  The  one  guilty  of  malice  did  not 
commit  the  wrong,  except  through  an  agent,  who  knew  nothing  about 
the  malicious  feelings  of  his  principal.  The  principal  was  not  liable 
for  general  malice,  but  only  for  such  particular  malice  as  was  connect- 
ed with  the  publication.  The  agent  was  not  liable  for  the  general  mal- 
ice of  his  principal,  of  which  he  knew  nothing,  and  which  had  no  con- 
nection with  the  wrong  done.  The  writer  of  the  article  was  not  liable 
for  the  malice  of  another,  of  which  he  had  never  heard,  and  which  had 
no  influence  upon  the  wrongful  act.  Yet  the  general  malice  of  one  out 
of  three  defendants,  although  it  had  no  connection  with  the  wrong,  has, 
as  it  must  be  presumed,  entered  into  the  verdict  of  $6,250  against  all, 
in  violation  of  the  rights  of  each.^* 

1*  See,  also,  Murphy  v.  Hobbs,  7  Colo.  541,  5  Pac.  119,  49  Am.  Rep,  3G6 
(1884);  Heiidrickson  v.  Kingsbury,  21  Iowa,  379  (1SG6);  Southern  Kansas  R.v. 
Co.  V.  Rice,  38  Kan.  398,  16  Pac.  817,  5  Am.  St.  Rep.  7G6  (1888);  Wheeler  & 
W.  Mfg.  Co.  V.  Boyce,  36  Kan.  350,  13  Pac.  G09,  59  Am.  Rep.  571  (1887) ;  Austin 
V.  Wilson,  4  Cush.  (Mass.)  273,  50  Am.  Dec.  7GG  (1849) ;  Detroit  Daily  P.  Co.  v. 
McArthur,  16  Mich.  447  (1868);  Elliott  v.  Van  Buren,  33  Mich.  49,  20  Am. 
Rep.  668  (1875) ;  Lucas  v.  M.  C.  R.  R.,  98  INIich.  1,  5G  N.  W.  1039,  39  Am.  St 
Rep.  517  (1893) ;  Bass  v.  C.  R.  Co.,  36  Wis.  463,  17  Am.  Rep.  495  (1874) ;  Brown 
V.  Swineford,  44  Wis.  2S5,  28  Am.  Rep.  582  (1878);  Hansley  v.  J.  &  W.  R.  Co., 
117  N.  C.  565,  23  S.  E.  443,  32  L.  R.  A.  543,  53  Am.  St.  Rep.  GOO  (1895).  And 
see,  in  particular,  the  exhaustive  case  of  Fay  v.  Parker,  53  N.  H.  342,  16  Am. 
Rep.  270  (1872). 

Reed,  J.  in  Sheik  v.  Hobson,  G4  Iowa,  146,  19  N.  W.  875  (1884): 
"The  action  was  originally  brought  against  Henry  Rush,  but  during  its 
pendency  he  died,  and  defendant.  Hobson.  administrator  of  his  estate,  was 
substituted  as  defendant.  The  alleged  slanderous  words  imputed  to  plaintiff 
a  want  of  chastity.  *  *  *  The  question  raised  by  the  assignment  is  wheth- 
er exemplary  or  punitory  damages  may  be  awarded  against  the  personal  rejire- 
sentative  of  a  deceased  wrongdoer.  There  is  no  doubt  but,  at  common  law, 
the  remedy  for  injury  such  as  plaintiff  complains  of  determines  upon  the  death 
of  the  wrongdoer.  1  Chit.  PI.  89.  But  under  our  statute  (Code,  §  2525)  all 
causes  of  action  survive,  'and  may  be  brought,  notwithstanding  the  death  of 
the  person  entitled,  or  liable  to  the  same.'  Plaintiff's  position  is  that,  under 
this  section,  the  right  is  preserved  to  her  to  have  damages  of  this  character 
assessed  on  account  of  the  wrongful  and  malicious  act  by  which  she  has  suf- 
fered, notwithstanding  the  death  of  the  one  who  committed  the  act.  But  we 
think  the  position  is  not  sound.  It  cannot  be  said,  in  any  case — unless  the 
right  is  created  by  statute — that  the  person  who  suffers  from  the  wrongful 
or  malicious  acts  of  another,  has  the  right  to  have  vindictive  damages  as- 
sessed against  the  wrongdoer.  Such  damages  are  awarded  as  a  punishment 
of  the  man  who  has  wickedly  or  wantonly  violated  the  rights  of  another,  rather 
than  for  the  compensation  of  the  one  who  suffers  from  his  wrongful  act.  It 
is  true,  they  are  awarded  to  the  one  who  has  been  made  to  suffer,  but  not 
as  a  matter  of  right;  for,  while  he  is  entitled,  under  the  law,  to  siich  sum  as 
will  fully  compensate  him  for  the  injury  sustained,  the  question  whether  puni- 
tory damages  shall  be  assessed,  and  the  amoimt  of  the  assessment,  is  left  to 
the  discretion  of  the  jury.  Plaintiff  had  a  right  of  action,  on  account  of  the 
slanderous  words  spoken  by  Rush,  for  such  sum  as  would  compensate  her  for 
the  injury.  Tliis  was  her  cause  of  action,  and  this  is  what  was  preserved  to 
her  by  the  statute  at  his  death.  But  she  had  no  personal  interest  in  the 
question  of  his  punishment.  So  far  as  he  was  concerned,  the  punitory  power 
of  the  law  ceased  when  he  died.     To  allow  exemplary  damages  now,  would 


Ch.  3)  EXEMPLARY  DAMAGES.  125 

be  to  punish  his  legal  and  personal  representatives  for  his  wrongful  acts;  but 
the  civil  "law  never  inflicts  vicarious  punishment.  Our  holding  as  to  the  object 
■of  assessing  exemplary  damages  in  any  case  is  abundantly  sustained  by  the 
authorities,  both  in  this  state  and  elsewhere." 

Walker,  J.,  in  City  of  Chicago  v.  Langlass,  52  111.  2o6,  4  Am.  Rep.  603  (1869): 

"But.  in  fixing  the  compensation,  the  jury  have  no  right  to  give  vindictive 
or  punitive  damages  against  a  municipal  corporation.  Against  such  a  body 
they  should  only  be  compensatory,  and  not  by  way  of  punishment.  This  seems 
to  us  to  be  a  very  large  verdict,  in  fact  largely  beyond  a  compensation  for 
the  loss  and  suffering  and  permanent  injury.  We  must  conclude  that  the 
jury  have  given  exemplary  damages,  and  that  the  case  should  be  submitted 
to  another  jury." 

Exemplary  damages  are  not  allowed  for  the  breach  of  a  contract  (excepting 
in  "breach  of  promise").  Richardson  v.  Railroad  Co.,  126  N.  C.  100,  35  S. 
E.  235  (1900) ;  N.  &  W.  R.  R.  Co.  v.  Wysor,  82  Va.  250  (1S86). 

See,  also,  Watson  v.  Dilts,  post,  p.  453 ;  Lytton  v.  Baird,  post,  p.  522 ; 
Lawrence  v.  Hagerman,  post,  p.  524 ;  Chellis  v.  Chapman,  post,  p.  483 ;  and  the 
cases  under  the  headings  "Mental  Suffering"  and  "Pecuniary  Conditioa  of 
Parties  as  Affecting  Allowance  of  Damages." 


liJ6  DISCRETIONARY   DAMAGES.  (Part   4 

CHAPTER  IV. 
MITIGATION. 


FRASER  V.  BERKELEY  et  al. 

(Court  of  Exchequer,  1S36.    7  Car.  &  P.  621.) 

Assault.  Plea  • — Not  guilty. 

It  appeared  that  the  defendant,  the  Hon.  G.  Berkeley,  accompanied 
by  his  brother,  the  Hon.  Craven  Berkeley,  went  on  the  3d  of  August,^ 
1836,  to  the  shop  of  the  plaintiff,  in  Regent  street ;  and  that  the  Hon. 
G.  Berkeley  beat  him  with  a  heavy  whip  and  his  fists,  the  Hon.  Craven 
Berkeley  holding  the  shop  door,  and  a  third  person  whose  name  did  not 
appear,  keeping  the  persons  in  the  street  away  from  the  door. 

It  was  opened  by  Thesiger,  for  the  defendant,  that  the  Hon.  G. 
Berkeley  had  published  an  historical  novel  called  Berkeley  Castle ;  and 
that  on  the  1st  of  August,  1836,  the  plaintiff  had  published,  in  a  work 
called  Frazer's  Magazine,  what  purported  to  be  a  critique  on  the  novel, 
but  which  was  really  a  most  malignant  libel  on  Mr.  G.  Berkeley,  and  his 
mother,  and  other  members  of  his  family. 

Erie,  for  the  plaintiff.  That  critique  is  the  subject  of  a  cross-action,, 
which  now  stands  for  trial  in  this  court.  It  is  therefore,  I  submit,  not 
a  matter  of  mitigation  in  this  action.  It  is,  if  anything,  a  distinct 
wrong,  for  which  Mr.  Berkeley  has  sought  a  distinct  remedy. 

Lord  Abinger,  C.  B.  A  defendant  certainly  cannot  put  in  a  libel 
as  a  set-off  against  an  assault.  The  rule  is,  that  that  which  amounts 
to  a  justification  must  be  pleaded,  but  any  matter  of  palliation  or  mit- 
igation may  be  given  in  evidence  under  the  general  issue,  and  I  think 
its  being  the  subject  of  another  action  makes  no  difference.  Suppose 
foul  words  preceded  a  blow — would  they  be  the  less  a  provocation  be- 
cause they  happened  to  be  actionable?  If  this  critique  is  the  subject 
of  another  action,  you  will  make  good  use  of  that  in  your  reply.^ 

Lord  Abinger,  C.  B.  (in  summing  up).  The  only  question  in  this 
case  is  as  to  the  amount  of  damages.  Whatever  is  an  answer  to  the 
action  must  be  pleaded  as  a  justification,  but  it  has  been  held  by  my 
learned  predecessors,  that  in  actions  for  personal  wrongs  and  injuries, 
a  defendant  who  does  not  deny  that  the  verdict  must  pass  against  him, 
may  give  evidence  to  shew  that  the  plaintiff  in  some  degree  brought 
the  thing  upon  himself,  and  in  that  view  the  libel  was  given  in  evi- 
dence by  the  defendant's  counsel,  (a)  This  libel  appears  to  have  been 
published  either  on  the  31st  of  July  or  the  1st  of  August,  and  the  as- 
sault is  on  the  3d  of  August.     The  law  I  think  would  be  an  unwise 

lArgument  of  counsel  at  this  point  in  the  original  report  is  here  omitted. 


Ch.  4)  MITIGATION.  127 

law,  if  it  did  not  make  allowance  for  human  infirmities;  and  if  a 
person  commit  violence  at  a  time  when  he  is  smarting  under  immediate 
provocation,  that  is  matter  of  mitigation :  and  the  same  rule  is  allowed 
to  prevail  even  on  trials  for  murder;  but  in  those  cases,  if  the  blood 
has  had  time  to  cool  before  the  fatal  blood  is  struck,  the  party  is 
guilty  of  murder — indeed,  in  the  present  case,  if  death  had  ensued,  the 
present  defendants  could  not  have  escaped  that  criminal  charge.  The 
provocation  three  days  before  would  not  have  availed  them  for  going 
deliberately  three  days  after  to  take  their  vengeance.  At  the  same  time 
it  appears  to  me  to  be  severe  to  say,  that  you  should  not  look  at  the 
cause  which  induced  the  assault.  But  still,  even  supposing  the  libel 
to  be  as  atrocious  as  words  can  make  it,  you  will  have  to  consider, 
whether  in  a  case  of  so  severe  a  beating  as  the  present,  you  would  let 
the  libel  have  any  very  serious  effect  on  the  amount  of  the  damages. 
It  has  been  said  that  the  plaintiff  was  a  publisher  only,  and  that,  al- 
though the  publisher  is  liable  for  damages  in  an  action,  yet  that  the 
anger  of  the  party  libelled  should  be  directed  against  the  author,  and 
not  against  the  bookseller.  If  the  bookseller  refuse  to  disclose  the 
name  of  the  author,  and  keep  himself  as  a  shield  over  the  libeller,  he 
cannot  complain  if  he  is  treated  as  the  author;  but  I  think  that  the 
bookseller  certainly  ought  to  be  first  asked  to  give  up  the  author.  If 
no  other  person  had  been  present,  it  might  have  been  supposed  that 
Mr.  Berkeley  had  asked  the  plaintiff  for  the  author's  name  before  he 
began  to  beat  the  plaintiff;  but  if  that  had  been  so,  the  third  person 
who  was  present  might  have  been  called  to  prove  it.  It  was  proposed 
by  the  plaintiff's  counsel  to  go  into  evidence  to  shew  that  the  libel  was 
founded  in  truth :  I  prevented  that  from  being  done,  because  it  is 
in  my  judgment  immaterial.  A  man  may  be  provoked  by  what  is  true 
as  well  as  by  what  is  false.  If  a  man  called  another  a  liar,  and  was 
knocked  down,  the  plaintiff  would  not  be  allowed  to  prove  on  the  trial 
of  the  assault  that  the  defendant  was  really  and  in  point  of  fact  a  liar, 
because  evidence  of  provocation  is  admitted  for  the  purpose  of  shew- 
ing that  the  feelings  of  the  party  were  excited,  and  a  man  is  not  stung 
the  less  by  a  libel  because  it  happens  to  be  true.  It  is  said  that  a  per- 
son who  publishes  a  work,  must  expect  to  have  his  feelings  hurt  by 
criticism ;  but  if  a  critic,  in  criticising  a  book,  goes  out  of  his  way,  and 
attacks  the  private  character  of  the  author,  this  cannot  be  justified,  and 
the  author  may  recover  damages.  This  was  I  think  laid  down  by  Lord 
Ellenborough  in  the  case  of  Carr  v.  Hood,  1  Camp.  353.  Mr.  Thesig- 
er  has  put  this  matter  as  a  sort  of  debtor  and  creditor  account — that 
Mr.  Fraser  libelled  Mr.  Berkeley,  and  Mr.  Berkeley  beat  him;  and 
that  on  Mr.  Fraser  bringing  his  action  for  the  assault.  Mr.  Berkeley 
brought  his  action  for  the  libel.  But,  if  you  allow  for  the  libel  in  dim- 
inution of  damages  in  this  action,  Mr.  Berkeley  will  still  be  entitled 
to  recover  damages  for  it  in  the  cross-action ;  and  as  he  has  chosen 
his  remedy  for  the  libel  by  his  action  for  damages,  I  think  that  he  can- 
not fairly  be  allowed  to  take  much  advantage  of  it  in  mitigation  of 


128  DISCRETIONARY  DAMAGES.  (Part   4 

damages  in  the  present  action.  I  really  think  that  this  assault  was 
carried  to  a  very  inconsiderate  length,  and  that  if  an  author  is  to  go  and 
give  a  beating  to  a  publisher  who  has  offended  him,  two  or  three 
blows  with  a  horsewhip  ought  to  be  quite  enough  to  satisfy  his  irritated 
feelings.^ 


AVERY  V.  RAY  et  al. 
(Supreme  Judicial  Court  of  Massachusetts,  1S04.     1  Mass.  12.) 

This  was  an  action  of  trespass  against  Alpheus  Ray  and  another, 
brought  by  Horace  Avery,  an  infant  under  the  age  of  twenty-one 
years,  who  sued,  by  his  father  and  guardian,  Miles  Avery,  for  an  as- 
sault and  battery  alleged  to  have  been  committed  by  the  defendants 
on  the  infant  on  the  14th  of  February,  1803.     *     *     * 

The  counsel  for  the  defendants  did  not  deny  the  assault,  &c.,  but 
offered  to  prove,  in  mitigation  of  damages,  that  the  plaintiff  had  said, 
and  caused  a  report  to  be  circulated,  that  the  sister  of  Ray,  one  of 
the  defendants,  had  openly  solicited  him,  the  plaintiff,  to  have  a  car- 
nal connection  with  her — that  Ray,  having  heard  that  the  plaintiff  had 
propagated  such  a  story,  had  called  on  him  to  know  whether  he  had 
or  had  not — that  the  plaintiff,  upon  this  application  of  Ray,  refusing 
either  to  acknowledge  or  deny  that  he  had,  was  informed  by  Ray,  that 
he  would  chastise  him  for  thus  slandering  his  sister,  and  that  he  did 
afterwards  chastise  him — which  was  the  assault  and  battery  for  which 
the  plaintiff  had  brought  his  action.  And  they  cited  the  case  of  Gold 
V.  Allen,  determined  in  this  court  in  this  county  some  years  since;  in 
which  the  court,  as  the  counsel  for  the  defendant  contended,  had  per- 
mitted Allen  to  give  in  evidence,  in  mitigation  of  damages,  a  provoca- 
tion, arising  from  the  propagation  of  an  infamous  story  respecting  the 
defendant  by  the  plaintiff. 

The  counsel  for  the  plaintiff  objected  to  the  evidence  now  offered. 
They  did  not  deny  that  in  many  instances  it  was  permitted  to  give  in 
evidence,  by  way  of  mitigation  of  damages,  facts  and  circumstances 
which  would  not  amount  to  a  justification;  but  these  facts  and  cir- 
cumstances were  always  such  as  took  place  at  the  time  and  place  of  as- 
sault. In  this  case  the  counsel  for  the  defendants  did  not  pretend  that 
any  part  of  what  they  now  offered  to  prove  happened  at  the  time  and 
place  of  the  present  assault ;  indeed  it  appeared  from  the  testimony  of 
all  the  witnesses  who  had  testified  as  to  what  then  took  place,  that 
nothing  of  the  kind  was  mentioned ;  and  it  had  also  been  proved,  by 
the  plaintiff,  that  Ray  had  made  use  of  art  and  address  to  get  the 
plaintiff  into  the  place  where  he  with  the  other  defendant  had  commit- 
ted the  assault. 

2  Matters  of  justification  cannot  be  given  In  evidence  in  order  to  mitigate 
the  damages.     Speck  v.  Phillips,  5  Mees.  &  W.  279  (1839). 


Ch.  4)  MITIGATION.  1-^ 

TiiATCiiKR,  J  ,  was  against  admitting  the  evidence  offered — it  would 
be  going  further  than  he  had  ever  known. 

Sewall,  J.,  was  also  against  admitting.  Immediate  provocations 
are  admitted — but  he  had  never  known  an  instance  where  the  court  had 
gone  further  than  that. 

SiiDGWiCK,  J.,  said  he  should  be  in  favor  of  admitting  evidence  of 
provocation  given,  in  mitigation  of  damages,  upon  a  liberal  scale;  but 
to  admit  such  evidence  where  the  blood  had  had  time  to  cool,  would 
be  extending  the  rule  so  as  to  render  it  impossible  to  say  where  the 
court  should  stop.  In  this  case  it  appeared  that  the  assault  had  been 
planned  with  considerable  deliberation,  and  committed  without  any 
provocation  given  by  the  plaintiff  at  the  time  of  the  assault — he  was 
therefore  against  admitting.     *     *     *  3 


LEE  V.  WOOLSEY. 

(Supreme  Coxn-t  of  New  York,  1S122.     19  Johns.  319,  10  Am.  Dec.  230.) 

This  was  an  action  of  trespass,  and  assault  and  battery,  tried  at  the 
Jefferson  circuit,  on  the  22d  of  June,  1821,  before  Mr.  Justice  Piatt. 
The  plaintiff  was  an  attorney  at  law,  at  Sackett's  Harbour,  and  the  de- 
fendant a  post  captain  in  the  navy  of  the  United  States,  stationed  at 
that  place.  The  plaintiff  proved  that  in  July,  1820,  the  defendant  met 
the  plaintiff  in  the  street,  and  said  to  him,  "Did  you  write  that  scan- 
dalous and  infamous  letter  for  Conder,  against  me,  to  the  Secretary 
of  the  Navy?"  The  plaintiff  replied,  "I  did,  but  I  did  it  as  an  attor- 
ney, and  was  paid  for  it."  The  defendant  then  said,  "What  insinua- 
tions did  you  throw  out,  yesterday,  against  me,  when  my  team  was 
passing  with  timber  through  the  village?"  The  plaintiff  said,  "Not 
any."  The  defendant  replied,  "You  lie,  you  scoundrel,  you  infamous 
puppy,"  and  immediately  drew  a  rawhide  whip  from  under  his  coat, 
and  beat  the  plaintiff  on  his  back,  shoulders,  &c.  The  plaintiff  was  a 
slender,  feeble  man,  and  the  defendant  a  man  of  great  strength ;  and 
the  plaintiff  suffered  great  bodily  injury  from  the  number  and  severity 
of  the  blows  which  he  received  from  the  defendant.  The  defendant, 
in  mitigation  of  damages,  offered  in  evidence,  a  paper  addressed  to 
the  Secretary  of  the  Navy,  dated  February  1,  1820,  without  signature, 
and  to  prove  that  it  had  been  published  and  circulated  among  the  citi- 
zens of  Sackett's  Harbour,  and  that  it  came  to  the  hands  of  the  de- 
fendant, a  few  days  previous  to  the  time  of  the  assault  and  battery, 
and  that  the  paper  was  in  the  handwriting  of  the  plaintiff,  f  The  de- 
fendant further  offered  to  prove,  that  the  day  before  the  assault  and 
battery  took  place,  the  plaintiff  had  made   several  scandalous  insin- 

3  P.nrt  of  the  statement  of  faf^ts  and  all  of  the  original  report  of  this  case 
following  the  opinion  of  Sedgwick,  J.,  is  here  omitted. 
Gilb.Dam.— 9 


130  DISCRETIONARY  DAMAGES.  (Part   4 

nations  against  the  defendant,  as  post  captain  in  the  navy,  charging 
him  with  embezzUng  the  public  property,  entrusted  to  his  care;  and 
that  the  defendant  had  been  informed  of  those  insinuations  and 
charges,  on  the  evening  preceding  the  assault  of  the  plaintiff.  This 
evidence  was  objected  to,  and  rejected  by  the  judge.  The  defendant 
then  offered  to  prove  that  the  paper  so  offered  in  evidence,  was  the  one 
referred  to  in  the  conversation  between  the  plaintiff  and  the  defend- 
ant, at  the  time  of  the  assault,  to  show  to  what  the  conversation  refer- 
red. This  evidence  was  objected  to,  and  rejected  by  the  judge.  The 
defendant  then  offered  to  prove  that  the  denial  of  the  plaintiff,  that 
he  made  such  insinuations  and  charges,  was  untrue ;  but  the  evidence 
was  objected  to,  and  overruled  by  the  judge.  The  jury  found  a  ver- 
dict for  the  plaintiff,  for  $500. 

A  motion  was  made  to  set  aside  the  verdict,  and  for  a  new  trial. 

Spencer,  C.  J.*  delivered  the  opinion  of  the  court.  The  evidence 
offered  and  overruled,  could  neither  be  admitted  in  mitigation  of  dam- 
ages, nor  as  explanatory  of  the  transaction.  The  only  view  in  which 
the  evidence  could  be  admissible,  would  be  for  the  purpose  of  showing, 
that  the  defendant,  under  the  influence  of  excited  and  irritated  pas- 
sions, was  impelled,  by  a  sense  of  the  injury  done  to  him  by  the  plain- 
tiff, thus  to  redress  himself.  The  law,  in  tenderness  to  human  frail- 
ties, distinguishes  between  an  act  done  deliberately,  and  an  act  pro- 
ceeding from  sudden  heat. 

If,  upon  a  sudden  quarrel,  two  persons  fight,  and  the  one  kills  the 
other,  this  is  manslaughter  only.  So,  if  a  man  be  greatly  provoked,  as 
by  pulling  his  nose,  or  other  great  indignity,  and  immediately  kills 
the  aggressor,  though  this  is  not  excusable,  the  offense  is  a  mitigated 
homicide;  for  there  is  no  previous  malice.  But,  in  every  case  of 
homicide  upon  provocation,  if  there  be  a  sufficient  time,  intervening 
the  affront  and  the  killing,  for  passion  to  subside,  and  reason  to  inter- 
pose, the  offence  becomes  murder.  In  analogy  to  this  principle,  evi- 
dence in  civil  actions  for  assaults  and  batteries,  in  mitigation  of  dam- 
ages, has  been  admitted,  to  show  a  provocation  on  the  part  of  the 
party  complaining  of  the  injury.  But,  the  provocation  must  be  so  re- 
cent, as  to  induce  a  fair  presumption,  that  the  violence  done  was  com- 
mitted during  the  continuance  of  the  feelings  and  passions  excited  by 
it.  On  any  other  principle,  the  law  would  countenance  the  most  re- 
vengeful feelings;  and  indirectly,  also,  an  appeal  by  persons  con- 
ceiving themselves  injured,  to  force  and  violence.  The  case  of  Avery 
V.  Ray,  1  Mass.  12,  was  decided  on  these  principles.  All  the  judges 
were  opposed  to  the  admission  of  evidence  of  a  remote  provocation, 
and  confined  the  inquiry  to  an  immediate  antecedent  one.  If  the  de- 
fendant had  been  permitted  to  show  what  he  offered  in  mitigation  of 
damages,  it  would  follow,  that  the  plaintiff  ought  to  have  been  allowed 
to  show  the  truth  of  the  statement  contained  in  the  letter  to  the  Secre- 

*  Part  of  the  opinion  is  omitted. 


Cll.  4)  MITIGATION.  131 

tary  of  the  Navy ;  and  so,  also,  of  the  other  charge ;  and,  thus,  an  in- 
quiry wholly  different  from  the  one  on  the  record,  would  be  gone  into, 
diverting  and  distracting  the  attention  of  the  jury.  It  appears  to  me, 
neither  to  comport  with  sound  policy  nor  law,  to  allow  an  inquiry  into 
antecedent  facts,  in  such  a  case  as  this,  unless  they  are  fairly  to  be 
considered  as  part  of  one  and  the  same  transaction.  A  contrary  course 
would  greatly  encourage  breaches  of  the- peace,  personal  recounters, 
and  every  species  of  brutal  force,  and  would  tend  to  uncivilize  the 
community.     ♦     *     *  o 


GRONAN  V.  KUKKUCK. 
(Supreme  Court  of  Iowa,  1882.     59  Iowa,  18,  12  N.  W.  74S.) 

Action  to  recover  damages  sustained  by  reason  of  an  assault  and 
battery  committed  by  defendants  upon  the  plaintiff.  There  was  a  ver- 
dict and  judgment  for  plaintiff.    Defendants  appeal. 

Beck,  j  ■{•  *  *  *  f^e  court  directed  the  jury  that  no  words 
used  by  plaintiff  would  justify  the  assault,  but  words  of  provocation 
used  just  before  and  at  the  time  of  the  assault  should  be  considered 
in  mitigation  of  exemplary  damages,  and  added  to  the  instruction  the 
following  words:  "But  no  words  used  by  plaintiff  to  the  defendants 
or  either  of  them  before  the  day  of  assault,  or  which  came  to  their 
knowledge  before  that  time,  should  be  considered  by  you  for  any  pur- 
pose." Provocation  given  at  the  time  of  the  assault,  or  within  a  prior 
time  so  recent  as  to  justify  the  presumption  that  the  offense  was  com- 
mitted under  the  influence  of  passion  excited  thereby,  may  be  shown 
in  mitigation  of  damages.  But  if  time  for  reflection  intervened  after 
the  provocation,  it  will  not  extenuate  the  violence.  '(This  is  the  set- 
tled rule  of  this  state.  Thrall  v.  Knapp,  17  Iowa,  4G8;  Ireland  v. 
Elliott,  5  Iowa,  478,  G8  Am.  Dec.  715.  A  provocation  arising  on  a 
day  prior  to  the  assault  cannot  be  shown  in  mitigation  of  damages, 
for  the  law  presumes  sufficient  time  intervened  before  the  assault  to 
allow  the  passions  to  subside  and  reason  to  regain  control  of  the  mind. 
*     *     *     Judgment  affirmed. 

s  See,  also,  Liiiford  v.  Lake.  3  Hurl.  &  N.  27G  (1S5S) ;  Bracegirdle  v.  Orford. 
2  Maule  &  S.  79  (1813);  Warwick  v.  Foulkes,  12  Mees.  &  W.  507  (1844);  Mat- 
thews V.  Terry,  10  Conn.  459  (1835);  Richardson  v.  Hine,  42  Conn.  20G  (1875); 
Rearick  v.  Wilcox,  81  111.  77  (1S7U) ;  Brown  v.  Brooks,  3  lud.  518  (1852) ;  Cur- 
rier V.  Swan,  63  Me.  323  (1874);  Corning  v.  Corning,  6  N.  Y.  103  (1S54) ;  Kiff 
V.  Youmans,  86  N.  Y.  324,  40  Am.  Rep.  543  (ISSl). 

tPart  of  the  opinion  is  omitted. 


132  DISCRETIONARY  DAMAGES,  (Part  4 


GOLDSMITH'S  ADM'R  v.  JOY. 

(Supreme  Court  of  Vermont,  18S9.     Gl  Vt.  488,  17  Atl.  1010,  4  L.  R.  A. 
500,  15  Am.  St.  Rep.  91'3.) 

Trespass  for  an  assault  and  battery,  committed  on  one  Goldsmith, 
brought  by  Goldsmith's  administrator  against  Moses  Joy,  Jr.  De- 
fendant did  not  deny  that  he  made  the  assault.  It  appeared,  however, 
that  at  the  time,  and  just  before,  hot  words  had  passed  between  the 
parties,  and  defendant  claimed  that  he  committed  the  wrong  under 
the  influence  of  the  passion  induced  by  the  insulting  and  unjustifiable 
language  of  plaintiff's  intestate,  and  that  this  fact  should  be  consid- 
ered by  the  jury  in  reduction  both  of  the  actual  and  exemplary  dam- 
ages. Defendant  was  the  superintendent  and  general  manager  of  the 
construction  of  a  system  of  waterworks  in  the  city  of  Bennington,  and 
in  that  capacity  had  in  his  employ  about  100  men,  mostly  or  all  for- 
eigners. It  was  in  reference  to  the  treatment  of  these  men  by  defend- 
ant that  the  intestate  used  the  alleged  insulting  language.  He  was 
suffering  from  Bright's  disease  at  the  time  of  the  aftVay,  and  subse- 
quently died  of  it.  It  was  claimed  that  his  death  was  materially 
hastened  by  the  assault. 

Tyler,  J.*(  The  court  instructed  the  jury  that  there  was  no  defense 
Ito  the  claim  for  actual  or  compensatory  damages;  that  words  were 
no  legal  excuse  for  the  infliction  of  personal  violence;  that,  no  mat- 
ter how  great  the  provocation,  the  defendant  was  bound  in  any  event 
to  answer  for  these  damages.  It  is  a  general  and  wholesome  rule  of 
law  that  whenever  by  an  act  which  he  could  have  avoided,  and  which 
cannot  be  justified  in  law,  a  person  inflicts  an  immediate  injury  by 
force,  he  is  legally  answerable  in  damages  to  the  party  injured.  The 
question  whether  provocative  words  may  be  given  in  evidence  under 
the  general  issue  to  reduce  actual  damages  in  an  action  of  trespass 
for  an  assault  and  battery  has  undergone  wide  discussion.  The  En- 
glish cases  lay  down  the  general  rule  that  provocation  may  mitigate 
damages.  The  case  of  Fraser  v.  Berkeley,  7  Car.  &  P.  621,  is  often 
referred  to,  in  which  Lord  Abinger  held  that  evidence  might  be  giv- 
en to  show  that  the  plaintiff  in  some  degree  brought  the  thing  upon 
himself ;  "that  it  would  be  an  unwise  law  if  it  did  not  make  allowance 
for  human  infirmities;  and,  if  a  person  commit  violence  at  a  time 
when  he  is  smarting  under  immediate  provocation,  that  is  matter  of 
mitigation."  Tindal,  C.  J.,  in  Perkins  v.  Vaughan,  5  Scott,  N.  R.  881, 
said :  "I  think  it  will  be  found  that  the  result  of  the  cases  is  that  the 
matter  cannot  be  given  in  evidence  where  it  amounts  to  a  defense, 
but  that,  where  it  does  not  amount  to  a  defense,  it  may  be  given  in 
mitigation  of  damages."  Linford  v.  Lake,  3  Hurl.  &  N.  275 ;  2  Add. 
Torts,  §  1393,  recognizes  the  same  rule.  In  this  country,  2  Greenl. 
Ev.  §  93,  states  the  rule  that  a  provocation  by  the  plaintiff  may  be  thus 

6  Part  of  the  opinion  is  omitted. 


Ch.  4)  MITIGATION.  133 

shown,  if  so  recent  as  to  induce  a  presumption  that  violence  was  com- 
mitted under  the  immediate  influence  of  the  passion  thus  wrongfully 
excited  by  the  plaintiff.     *     *     * 

It  is  also  said  in  2  Sedg.  Dam.  (7th  Ed.)  521,  note:  "If,  making 
due  allowance  for  the  infirmities  of  human  temper,  the  defendant  has 
reasonable  excuse  for  the  violation  of  public  order,  then  there  is  no 
foundation  for  exemplary  damages,  and  the  plaintiff  can  claim  only 
compensation.  It  is  merely  the  corollary  of  this  that  where  there 
is  a  reasonable  excuse  for  the  defendant,  arising  from  the  provocation 
or  fault  of  the  plaintiff,  but  not  sufficient  entirely  to  justify  the  act 
done,  there  can  be  no  exemplary  damages,  and  the  circumstances  of 
mitigation  must  be  applied  to  the  actual  damages.  If  it  were  not  so, 
the  plaintiff  would  get  full  compensation  for  damages  occasioned  by 
himself.  The  rule  ought  to  be  and  is  practically  mutual.  ^lalice  and 
provocation  in  the  defendant  are  punished  by  inflicting  damages  ex- 
ceeding the  measure  of  compensation,  and  in  the  plaintiff  by  giving 
him  less  than  that  measure."  In  Burke  v.  Melvin,  45  Conn.  243,  Park, 
C.  J.,  held  that  the  whole  transaction  should  go  to  the  jury.  "They 
could  not  ascertain  what  amount  of  damage  the  plaintiff  was  entitled 
to  receive  by  considering  a  part  of  the  transaction.  They  must  look 
at  the  whole  of  it.  They  must  ascertain  how  far  the  plaintiff'  was  in 
fault,  if  in  fault  at  all,  and  how  far  the  defendant,  and  give  damages 
accordingly.  The  difference  between  a  provoked  and  an  unprovoked 
assault  is  obvious.  The  latter  would  deserve  punishment  beyond  the 
actual  damage,  while  the  damage  in  the  other  case  would  be  attribut- 
able, in  a  great  measure,  to  the  misconduct  of  the  plaintiff  himself." 
In  Bartram  v.  Stone,  31  Conn.  159,  it  was  held  that  in  an  action  for 
assault  and  battery  the  defendant  might  prove,  in  mitigation  of  dam- 
ages, that  the  plaintiff,  immediately  before  the  assault,  charged  him 
with  a  crime,  and  that  his  assault  upon  the  plaintiff  was  occasioned  by 
"sudden  heat,"  produced  by  the  plaintiff's  false  accusation.  See,  also, 
Richardson  v.  Hine,  42  Conn.  206.  In  Kiff  v.  Youmans,  86  N.  Y. 
324,  40  Am.  Rep.  543,  the  plaintiff  was  upon  defendant's  premises  for 
the  purpose  of  committing  a  trespass,  and  the  defendant  assaulted  him 
to  prevent  the  act,  and  the  only  question  was  whether  he  used  unnec- 
essary force.  Danforth,  J.,  said:  "It  still  remains  that  the  plaintiff 
provoked  the  trespass;  was  himself  guilty  of  the  act  which  led  to 
the  disturbance  of  the  public  peace.  Although  this  provocation  fails 
to  justify  the  defendant,  it  may  be  relied  upon  by  him  in  mitigation 
even  of  compensatory  damages.  This  doctrine  is  as  old  as  the  action 
of  trespass,  *  *  *  and  is  correlative  to  the  rule  which  permits 
circumstances  of  aggravation,  such  as  time  and  place  of  an  assault,  or 
insulting  words,  or  other  circumstances  of  indignity  and  contumely,  to 
increase  them."  In  Robison  v.  Rupert.  23  Pa.  523,  the  same  rule  is 
adopted,  the  court  saying:  "Where  there  is  a  reasonable  excuse  for 
the  defendant  arising  from  the  provocation  or  fault  of  the  plaintiff, 
but  not  sufficient  entirely  to  justify  the  act  done,  there  can  be  no  ex- 


134  DISCRETIONARY   DAMAGES.  (Part   4 

emplary  damages,  and  the  circumstances  of  mitigation  must  be  applied 
to  the  actual  damages."  In  Ireland  v.  Elliott,  5  Iowa,  478,  68  Am. 
Dec.  715,  the  court  said:  "The  furthest  that  the  law  has  gone,  and 
the  furthest  that  it  can  go,  while  attempting  to  maintain  a  rule,  is  to 
permit  the  high  provocation  of  language  to  be  shown  as  a  palliation 
for  the  acts  and  results  of  anger;  that  is,  in  legal  phrase,  to  be  shown 
in  mitigation  of  damages."  In  Thrall  v.  Knapp,  17  Iowa,  468,  the 
court  said :  "The  clear  distinction  is  this :  Contemporaneous  provoca- 
tions of  words  or  acts  are  admissible,  but  previous  provocations  are 
not.  And  the  test  is  whether  'the  blood  has  had  time  to  cool.'  *  *  * 
The  law  affords  a  redress  for  every  injury.  If  the  plaintiffs  slandered 
defendant's  daughters,  it  would  entirely  accord  with  his  natural  feel- 
ing to  chastise  him ;  but  the  policy  of  the  law  is  against  his  right  to 
do  so,  especially  after  time  for  reflection.  It  affords  a  peaceful  reme- 
dy. On  the  other  hand,  the  law  so  completely  disfavors  violence,  and 
so  jealously  guards  alike  individual  rights  and  the  public  peace,  that, 
'if  a  man  gives  another  a  cuff  on  the  ear,  though  it  costs  him  nothing, 
no,  not  so  much  as  a  little  diachylon,  yet  he  shall  have  his  action.'  Per 
Lord  Holt,  Ashby  v.  White,  2  Ld.  Raym.  955."  The  reasoning  of  the 
court  seems  to  make  against  his  rule  that  provocations  such  as  happen 
at  the  time  of  the  assault  may  be  received  in  evidence  to  reduce  the 
amount  of  the  plaintiff's  recovery. 

In  Morely  v.  Dunbar,  24  Wis.  183,  Dixon,  C.  J.,  held  "that,  notwith- 
standing what  was  said  in  Birchard  v.  Booth,  4  Wis.  75,  circumstances 
of  provocation  attending  the  transaction,  or  so  recent  as  to  constitute 
a  part  of  the  res  gestae,  though  not  sufficient  entirely  to  justify  the  act 
done,  may  constitute  an  excuse  that  may  mitigate  the  actual  damages ; 
and,  where  the  provocation  is  great  and  calculated  to  excite  strong 
feelings  of  resentment,  may  reduce  them  to  a  sum  which  is  merely 
nominal."  But  in  Wilson  v.  Young,  31  Wis.  574,  it  was  held  by  a  ma- 
jority of  the  court  that  provocation  could  go  to  reduce  compensatory 
damages  only  so  far  as  these  should  be  given  for  injury  to  the  feel- 
ings; Dixon,  C.  J.,  however,  adhering  to  the  rule  in  Morely  v.  Dun- 
bar that  it  might  go  to  reduce  all  compensatory  damages.  But  in  Fene- 
lon  V.  Butts,  53  Wis.  344,  10  N.  W.  501,  and  in  Corcoran  v.  Harran, 
55  Wis.  120,  12  N.  W.  468,  it  was  clearly  held  that  personal  abuse  of 
the  assailant  by  the  party  assaulted  may  be  considered  in  mitigation  of 
punitory,  but  not  of  actual  damages,  which  include  those  allowed  for 
mental  and  bodily  suffering;  that  a  man  commencing  an  assault  and 
battery  under  such  circumstances  of  provocation  is  liable  for  the  ac- 
tual damages  which  result  from  such  assault.  In  Donnelly  v.  Harris, 
41  111.  126,  the  court  instructed  the  jury  that  words  spoken  might  be 
considered  in  mitigation  of  damages.  Walker,  C.  J.,  in  delivering  the 
opinion  of  the  vSupreme  Court,  remarked:  "Had  this  modification  been 
limited  to  exemplary  damages,  it  would  have  been  correct,  but  it  may 
well  have  been  understood  by  the  jury  as  applying  to  actual  damages, 
and  they  wo'uld  thus  have  been  misled.    To  allow  them  the  effect  to 


Ch.  4)  MITIGATION.  135 

mitigate  actual  damages  would  be  virtually  to  allow  them  to  be  used 
as  a  defense.  To  say  they  constitute  no  defense,  and  then  to  say  they 
may  mitigate  all  but  nominal  damages,  would,  we  think,  be  doing  by 
indirection  what  has  been  prohibited  from  being  done  directly.  To 
give  to  words  this  effect  would  be  to  abrogate,  in  effect,  one  of  the  most 
firmly  established  rules  of  the  law."     *     *     ♦ 

The  court  said  in  Prentiss  v.  Shaw,  56  Me.  436,  96  Am.  Dec.  475 : 
"We  understand  that  rule  to  be  this :  A  party  shall  recover  as  a  pecun- 
iary recompense  the  amount  of  money  which  shall  be  a  remuneration, 
as  near  as  may  be,  for  the  actual,  tangible,  and  immediate  result,  injury, 
or  consequence  of  the  trespass  to  his  person  or  property.  *  *  * 
If  the  assault  was  illegal  and  unjustified,  why  is  not  the  plaintiff  in 
such  case  entitled  to  the  benefit  of  the  general  rule,  before  stated,  that 
a  party  guilty  of  an  illegal  trespass  on  another's  person  or  property 
must  pay  all  the  damages  to  such  person  or  property,  directly  and  ac- 
tually resulting  from  the  illegal  act?  *  *  *  Where  the  trespass 
or  injury  is  upon  personal  or  real  property,  it  would  be  a  novelty  to 
hear  a  claim  for  reduction  of  the  actual  injury  based  on  the  ground  of 
provocation  by  words.  If,  instead  of  the  owner's  arm,  the  assailant 
had  broken  his  horse's  leg,  *  *  *  must  not  the  defendant  be  held 
*o  pay  the  full  value  of  the  horse  thus  rendered  useless?"  The  learn- 
ed judge  admits  that  the  law  has  sanctioned,  by  a  long  series  of  de- 
cisions, the  admission  of  evidence  tending  to  show,  on  one  side,  aggra- 
vation, and  on  the  other  mitigation  of  the  damages  claimed,  but  he 
holds  the  law  to  be  that  mitigant  circumstances  can  only  be  set  against 
exemplary  damages,  and  cannot  be  used  to  reduce  the  actual  damages 
directly  resulting  from  the  defendant's  unlawful  act.     *     *     * 

We  find  no  error  in  the  charge  and  the  judgment  is  affirmed.  ' 

7  Dixon,  C.  J.,  in  Merely  v.  Dunbar,  24  Wis.  183  (1860): 
"Circimistances  of  provocation  attending  tlie  transaction,  or  so  recent  as 
to  constitute  a  part  of  tlie  res  gestse,  tliougli  not  sufficient  entirely  to  justify 
tlie  act  clone,  may  constitute  an  excuse  wlaich  will  mitigate  the  actual  dam- 
ages ;  and,  where  the  provocation  is  great  and  calculated  to  excite  strong  feel- 
ings of  resentment,  may  reduce  them  to  a  sum  which  is  merely  nominal.  This 
seems  to  follow  as  the  necessary  and  logical  result  of  the  rule  which  permits 
exemplary  damages  to  be  recovered.  Where  motive  constitutes  a  basis  for 
increasing  the  damages  of  the  plaintiff  above  those  actually  sustained,  there  it 
should,  under  proper  circumstances,  constitute  the  basis  for  reducing  them 
below  the  same  standard.  If  malice  in  the  defendant  is  to  be  punished  by 
the  imposition  of  additional  damages,  or  smart  money,  then  malice  on  the 
part  of  the  plaintiff,  by  which  he  provoked  the  injuiT  complained  of,  should 
be  subject  to  like  punishment,  which,  in  his  case,  can  only  be  inflicted  by 
withholding  the  damages  to  which  he  would  otherwise  be  entitled.  The  law 
is  not  so  onesided  as  to  scrutinize  the  motives  and  punish  one  party  to  the 
transaction  for  his  malicious  conduct,  and  not  to  punish  the  other  for  the 
same  thing;  nor  so  unwise  as  not  to  make  allowance  for  the  infirmities  of 
men,  when  smarting  under  the  sting  of  gross  and  immediate  provocation.  If- 
it  were,  then,  as  has  l^eon  well  said,  it  would  frequently  happen  that  the  plain- 
tiff would  get  full  compensation  for  damages  occasioned  by  himself--a  result 
which  would  be  contrary  to  every  princijile  of  reason  and  justice." 

That  defendant's  good  motive  may  lessen  the  amount  of  damages  to  be  as- 


136  DISCRETIONARY  DAMAGES.  (Part  1 


SICKRA  V.  SMALL  et  al. 

(Supreme  Judicial  Court  of  Maine,  1895.     87  Me.  493,  33  Atl.  9, 
47  Am.  St.  Kep.  344.) 

WhitehousEj  J.®  This  was  an  action  of  libel  for  defamatory  mat- 
ter, published  in  a  newspaper,  representing  that  the  plaintiff  and  Mrs. 
Blake  had  "eloped,"  and  were  living  together  in  adultery.''. 

At  the  trial,  evidence  was  offered  by  the  defendant,  and  admitted 
by  the  court,  subject  to  the  plaintiff's  right  of  exception,  that  the  plain- 
tiff's "general  character"  was  bad  in  the  community  in  which  he  lived, 

1.  It  was  not  questioned  by  the  plaintiff  that,  in  actions  for  libel  or 
slander,  the  character  of  the  plaintiff'  may  be  in  issue  upon  the  ques- 
tion of  damages;  but  it  is  contended  that  the  inquiry  should  be  re- 
stricted to  the  plaintiff's  general  reputation  in  respect  to  that  trait  of 
character  involved  in  the  defamatory  charge.     *     *     * 

In  this  class  of  cases,  the  defendant  may  introduce  evidence,  in  miti- 
gation of  damages,  that  the  plaintiff's  general  reputation,  as  a  man  of 
moral  worth,  is  bad,  and  may  also  show  that  his  general  reputation 
is  bad  with  respect  to  that  feature  of  character  covered  by  the  defama- 
tion in  question;  and,  as  to  the  admission  of  such  evidence,  it  is  im- 
material whether  the  defendant  has  simply  pleaded  the  general  issue, 
or  has  pleaded  a  justification  as  well  as  the  general  issue.  Stone  v. 
Varney,  7  Mete.  (Mass.)  86,  39  Am.  Dec.  763;  Leonard  v.  Allen,  11 
Cush.  (Mass.)  241;  Eastland  v.  Caldwell,  2  Bibb  (Ky.)  21,  4  Am.  Dec. 
668;  Powers  V.  Gary,  6-i  Me.  9.     *     *     * 

In  Stone  v.  Varney,  supra,  the  libel  imputed  to  the  plaintiff  "heart- 
less cruelty  toward  his  child,"  and  it  was  held  competent  for  the  de- 
fendant to  introduce  evidence,  in  mitigation  of  damages,  that  "the  gen- 
eral reputation  of  the  plaintiff  in  the  community,  as  a  man  of  moral 
worth,"  was  bad.  After  a  careful  examination  of  the  authorities 
touching  the  question,  the  court  say,  in  the  opinion :  YThis  review  of 
the  adjudicated  cases,  and  particularly  the  decisions  in  this  common- 
wealth and  in  the  state  of  New  York,  seems  necessarily  to  lead  to  the 
conclusion  that  evidence  of  general  bad  character  is  admissible  in 
mitigation  of  damages.  *  *  *  j^  cannot  be  just  that  a  man  of  in- 
famous character  should,  for  the  same  libelous  matter,  be  entitled  to 
equal  damages  with  the  man  of  unblemished  reputation ;  yet  such  must 
be  the  result,  unless  character  be  a  proper  subject  of  evidence  before 
a  jury.  Lord  EHenborough,  in  1  Maule  &  S.  286,  says :  ''Certainly  a  per- 
son of  disparaged  fame  is  not  entitled  to  the  same  measure  of  damages 
with  one  whose  character  is  unblemished,  and  it  is  competent  to  show 

that  by  evidence.'/* 

./ 

sessed  for  the  doing  of  a  wrongful  act,  see  Linford  v.  Lake,  3  Hurl.  &  N. 
276  (1858) ;  Wilson  v.  Hicks.  26  L.  J.  Exch.  242  (1857) :  Davis  v.  L.  &  N.  W. 
Ry.,  4  Jur.  (N.  S.)  1303  (1S5S) ;  Tullie  v.  Corrle,  16  Law  T.  796  (1S67). 

See  article  in  16  Harv.  Law  Rev.  591. 

8  Part  of  the  opinion  is  omitted. 


Ch.  4)  MITIGATION.  137 

In  Leonard  v.  Allen,  supra,  the  plaintiff  was  charged  with  malicious- 
ly burning-  a  schoolhouse,  and  it  was  held  that,  in  the  introduction  of 
evidence  to  impeach  the  character  of  the  plaintiff,  in  mitigation  of  dam- 
ages, the  inquiries  should  relate  either  to  the  general  character  of  the 
plaintiff  for  integrity  and  moral  worth,  or  to  his  reputation  in  regard 
to  conduct  similar  in  character  to  the  offense  with  which  the  defend- 
ant had  charged  him. 

In  the  recent  case  of  Clark  v.  Brown,  116  Mass.  505,  the  plaintiff 
was  charged  with  larceny.  The  trial  court  admitted  evidence  that  the 
plaintiff's  reputation  for  honesty  and  integrity  was  bad,  and  excluded 
evidence  that  his  reputation  in  respect  to  thieving  was  bad.  But  the 
full  court  held  the  exclusion  of  the  latter  evidence  to  be  error,  and  re- 
affirmed the  rule,  laid  down  in  Stone  v.  Varney  and  Leonard  v.  Allen, 
supra,  that  it  was  competent  for  the  defendant  to  prove,  in  mitigation 
of  damages,  that  the  plaintiff's  general  reputation  was  bad,  and  that  it 
was  also  bad  in  respect  to  the  charges  involved  in  the  alleged  slander. 

In  Lamos  v.  Snell,  6  N.  H,  413,  25  Am.  Dec.  468,  the  defendant's 
right  to  inquire  into  the  plaintiff's  "general  character  as  a  virtuous  and 
honest  man,  or  otherwise,"  was  brought  directly  in  question;  and  it 
was  determined  that  the  defendant  was  "not  confined  to  evidence  of 
character  founded  upon  matters  of  the  same  nature  as  that  specified 
in  the  charge,  but  may  give  in  evidence  the  general  bad  character  of 
the  plaintiff  *  *  *  j^  mitigation  of  damages,  and  for  this  inquiry 
the  plaintiff  must  stand  prepared." 

In  Eastland  v.  Caldwell,  supra,  the  court  say,  in  the  opinion:  "In 
the  estimation  of  damages  the  jury  must  take  into  consideration  the 
general  character  of  the  plaintiff.  *  *  *  1  In  this  case,  the  defend- 
ant's counsel  was  permitted  by  the  court  to  inquire  into  the  plaintiff's 
general  character  in  relation  to  the  facts  in  issue ;  but  we  are  of  opin- 
ion he  ought  to  have  been  permitted  to  inquire  into  his  general  moral 
character,  without  relation  to  any  particular  species  of  immorality; 
for  a  man  who  is  habitually  addicted  to  every  vice,  except  the  one  with 
which  he  is  charged,  is  not  entitled  to  as  heavy  damages  as  one  pos- 
sessing a  fair  moral  character.  The  jury,  who  possess  a  large  and  al- 
most unbounded  discretion  upon  subjects  of  this  kind,  could  have  but 
very  inadequate  data  for  the  quantum  of  damages  if  they  are  permit- 
ted only  to  know  the  plaintiff's  general  character  in  relation  to  the 
facts  put  in  issue," 

With  respect  to  the  form  of  the  inquiry,  it  is  said  to  be  an  inflexi- 
ble rule  of  law.  that  the  only  admissible  evidence  of  a  man's  character, 
or  actual  nature  and  disposition,  is  his  general  reputation  in  the  com- 
munity where  he  resides.  Chamb.  Best,  Ev.  256,  note.  It  would  seem, 
therefore,  that,  in  order  to  avoid  eliciting  an  expression  of  the  wit- 
ness' opinion  respecting  the  plaintiff's  character,  the  appropriate  form 
of  interrogatory  would  be  an  inquiry  calling  directly  for  his  knowl- 
edge of  the  plaintiff's  general  reputation  in  the  community,  either  as 


138  DISCRETIONARY  DAMAGES.  (Part   4 

a  man  of  moral  worth,  without  restriction,  or  in  the  particular  rela- 
tion covered  by  the  libel  or  slander. 

2.  But  the  plaintiff  also  has  exceptions  to  the  following  instruction 
in  the  charge  of  the  presiding  justice:  "I  am  requested  by  the  counsel 
for  the  defendant  to  instruct  you  that,  if  the  plaintiff's  conduct  was 
such  as  to  excite  the  defendant's  suspicions,  it  should  be  considered 
in  mitigation  of  damages,  the  plaintiff  alleging  that  he  had  never  been 
suspected  of  the  crime  alleged.    I  give  you  that  instruction,"     *     *     * 

The  obvious  objection  to  it  is  that  the  damages  in  an  action  of  slan- 
der are  to  be  "measured  by  the  injury  caused  by  the  words  spoken,  and 
not  by  the  moral  culpability  of  the  speaker."  We  have  seen  that  the 
defendant  is  permitted  to  prove  that  the  plaintiff's  general  reputation 
is  bad,  because  this  evidence  has  a  legitimate  tendency  to  show  that 
the  injury  is  small;  (but  the  evidence  of  general  report  that  the  plain- 
tiff is  guilty  of  the  imputed  offense  is  inadmissible  for  the  purpose  of 
reducing  damages. ,  Powers  v.  Gary,  supra ;  Mapes  v.  Weeks,  4  Wend. 
(N.  Y.)  659;  Stone  v.  Varney,  supra.  A  fortiori,  evidence  of  the  de- 
fendant's suspicions,  however  excited,  cannot  be  received  for  such  a 
purpose.     *     *     *  9 

9  Long,  J,,  in  Newman  v.  Stein,  75  Mich.  402,  42  N.  W.  956,  13  Am.  St.  Rep. 
447  (1SS9): 

"The  words  charged  to  have  been  spoken  were  actionable  per  se.  and,  if  the 
defendant  was  actuated  by  malice,  and  in  a  wanton  manner  intended  to  charge 
the  plaintiff  with  being  michaste,  then  exemplary  damages  were  recoverable. 
But  if  the  defendant  spoke  the  words  in  the  heat  of  passion,  provoked  thereto 
by  what  plaintiff  had  said  of  his  family,  and  which  had  been  communicated  to 
him  as  coming  from  the  plaintiff  herself,  this  would  be  evidence  of  the  want 
of  malice,  and  the  jury  should  consider  it  in  mitigation  of  damages." 

McFarlane,  J.,  in  Callahan  v.  Ingram,  122  Mo.  355,  26  S.  W.  1020,  43  Am. 
St.  Rep.  583  (1894): 

"Exemplary  damages  may  always  be  given  in  suits  for  slander,  when  the 
words  are  maliciously  spoken ;  but  whether  such  damages  should  be  given,  in 
any  case,  is  a  matter  within  the  discretion  of  the  jury.  In  order  to  show 
good  faith,  and  want  of  malice,  the  defendant  has  the  right  to  put  in  evidence 
all  the  circumstances  under  which  the  words  were  uttered;  and,  if  such  cir- 
cumstances tend  to  rebut  malice,  such  damages  could  only  be  awarded  in 
case  the  words  were  maliciously  spoken,  but  may,  in  themselves,  be  sufficient 
proof,  if  malice  is  implied  therefrom.  Plaintiff,  by  innuendo,  charged  that 
defendant,  by  the  slanderous  words  used,  intended  to  impute  to  him  corruption 
in  office.  Defendant,  by  answer,  and  in  mitigation  of  damages,  admitted  that 
the  words  spoken  had  respect  solely  to  plaintiff's  official  conduct.  Defend- 
ant offered,  as  was  his  right  to  do,  evidence  tending  to  prove  the  circumstances 
under  which  the  objectionable  words  were  used,  in  order  to  prove  good  faith, 
and  want  of  malicious  intent.  As  has  been  said,  defendant,  as  an  interested 
citizen,  had  the  right  to  make  reasonable  comment  and  fair  criticism  upon 
plaintiff's  official  conduct,  but  he  had  no  right  to  go  beyond  that,  and  slander 
him.  It  was,  in  view  of  all  the  circumstances,  for  the  jury  to  say  how  far 
the  evidence  mitigated  the  malice,  if  at  all,  and  to  award  the  damages  ac- 
cordingly." 


Ch.  4)  MITIGATION.  139 

SWIFT    V.    DICKERMAN. 

(Supreme  Court  of  Errors  of  Connecticut,  18G3.    31  Conn.  285.) 

Sanford,  J.^°  *  *  *  ( No  rule  of  law  is  better  settled  than  that 
in  actions  of  slander  the  defendant  shall  not  be  permitted  to  prove  the 
truth  of  the  words  for  the  purpose  of  mitigating  the  damages.  If  the 
charge  is  true,  that  may  be  pleaded  in  justification,  and  must  be  so 
pleaded,  or  notice  of  justification  must  be  given  at  the  time  of  plead- 
ing, or  it  can  not  be  proved  upon  the  trial.  2  Selw.  N.  P.  1167;  Bailey 
V.  Hyde,  3  Conn.  463,  8  Am.  Dec.  203 ;  2  Greenl.  Ev.  §  424. 

The  imputation  contained  in  the  words  complained  of  in  the  first 
count  of  this  declaration  is,  that  the  plaintiff,  professing  to  be  a  phy- 
sician, and  practicing  as  such,  was  so  ignorant  and  unskillful  that 
most  of  his  patients  lost  their  lives  by  following  his  prescriptions;  in 
the  second  count,  that  the  plaintiff  was  destitute  of  good  character  as 
a  man,  and  of  skill,  knowledge  and  experience  as  a  physician;  and  in 
the  third,  that  he  had  so  little  professional  knowledge  and  skill  that  he 
was  more  likely  to  kill  than  to  cure  those  who  employed  him.  Want  of 
professional  knowledge  and  skill,  then,  is  the  gist  of  the  imputation 
contained  in  the  words  complained  of.  The  evidence  offered,  and 
admitted  over  defendant's  objection,  was  of  the  facts  and  circum- 
stances of  the  plaintiff's  treatment  of  disease  in  some  thirty  cases 
specified  in  the  notice,  in  all  of  which  cases,  as  the  defendant  claimed, 
the  plaintiff  evinced  professional  ignorance  and  want  of  skill. 
/Had  the  defendant  by  a  special  plea  or  notice  justified  the  speak- 
ing of  the  words  complained  of  because  they  were  true,  the  evidence 
under  such  plea  or  notice  would  have  been  admissible.  \But  the  truth 
of  the  defendant's  charge  was  not  pretended,  and  the  notice  was  as 
unavailing  as  it  was  unnecessary.  In  this  action  facts  which  affect 
the  amount  of  damages  merely  can  never  be  specially  pleaded,  and 
may  always  be  given  in  evidence  under  the  general  issue  without  no- 
tice. And  neither  plea  nor  notice  will  enable  a  defendant  to  intro- 
duce evidence  which  has  no  legal  tendency  to  prove  the  issue  under 
which  he  offers  it.  Williams  v.  Miner,  18  Conn.  464;  Stow  v.  Con- 
verse, 4  Conn.  33;  Andrews  v.  Vanduzer,  11  Johns.  (N.  Y.)  38;  2 
Greenl.  Ev.  §  425.  Upon  this  trial  the  defendant  made  no  attempt  to 
justify  the  speaking  of  the  words,  but  he  contended  that  the  plaintift''s 
damages  should  be  reduced  because  in  certain  specified  cases  he  had 
treated  his  patients  in  such  a  way  as  to  evince  his  want  of  professional 
knowledge  and  skill. 

Now  damages  in  this  kind  of  action  are  denied  altogether,  and  the 
suit  is  barred,  when  the  words  though  spoken  were  not  defamatory,  or 
were  true,  or  were  spoken  under  circumstances  which  justified  their  ut- 

10  Part  of  the  opinion  is  omitted. 


140  DISCRETIONARY  DAMAGES.  (Part   4 

terance.  And  damages  are  to  be  reduced  where  the  plaintiff's  reputa- 
tion in  regard  to  the  offense  or  misconduct  imputed  by  the  words  was 
in  fact  impaired  before  the  words  were  uttered,  because  an  impaired 
reputation  is  less  valuable  than  a  sound  one,  and  a  smaller  amount  of 
injury  can  be  done  to  it.  And  they  are  to  be  reduced  also,  where  the 
circumstances  under  which  the  words  were  uttered  were  such  as  to 
show  that,  although  false,  their  utterance  was  not  in  fact  malicious. 
/This  evidence  was  not  offered  to  defeat  the  suit,  and  we  think  it 
was  inadmissible  to  reduce  the  damages.  It  was  not  admissible  for 
the  purpose  of  showing  that  the  plaintiff's  professional  reputation  was 
impaired  before  the  words  were  spoken.  \  Reputation,  or  as  it  is  some- 
times called,  character,  is  a  fact  to  be  proved  by  the  testimony  of 
witnesses  who  know  it,  not  by  the  proof  of  specific  instances  of  mis- 
conduct which  might  or  might  not  have  injuriously  affected  it.  Every 
man  is  bound,  and  is  supposed  to  be  always  prepared  to  answer  and  re- 
pel imputations  upon  his  general  reputation  whenever  that  reputation  is 
by  the  rules  of  law  assailable  in  court,  but  not  to  answer  specific  charges 
of  misconduct  unconnected  with  the  subject-matter  of  the  suit.  In  ac- 
tions for  defamation  damages  should  be  given  in  proportion  to  the  value 
of  the  plaintiff's  character  at  the  time  it  was  assailed  by  the  defendant, 
and  the  degree  of  malice  which  actuated  the  assailant.  But  the  mis- 
conduct of  the  plaintiff  in  particular  instances  has  no  necessary  con- 
nection with  his  reputation.  It  is  matter  of  common  observation  that 
physicians  of  the  highest  professional  attainments  and  reputation 
sometimes  err  in  their  treatment  of  particular  cases  of  disease;  and 
probably  the  practice  of  almost  ever}'  physician  affords  examples  of 
erroneous  and  injurious  treatment;  but  the  loss  of  professional  rep- 
utation is  by  no  means  necessarily  involved  in  such  mistakes.  It  may 
not  be  known  or  believed  that  they  have  in  fact  occurred,  and  so  their 
occurrence  may  have  produced  no  effect  upon  the  public  mind.  There 
is  then  no  necessary  connection  between  mistakes  in  medical  practice 
and  loss  of  professional  reputation,  and  therefore  the  loss  of  reputation 
can  not  be  legitimately  inferred  from  the  proof  of  such  mistakes. 
/  The  offered  evidence  was  inadmissible  also  for  the  purpose  of  show- 
ing that  the  defendant  was  not  actuated  by  malicious  motives  in  mak- 
ing the  imputation.  We  assent  to  the  doctrine  sanctioned  by  this  court 
in  Williams  v.  Miner,  "that  a  defendant  should  not  be  deprived  of  the 
benefit  of  mitigating  circumstances  for  no  better  reason  than  that 
they  conduce  to  prove  the  truth  of  the  charge  while  they  fall  short  of 
it."  The  defendant  may  show  in  evidence  by  way  of  excuse  anything 
short  of  a  justification,  which  does  not  necessarily  imply  the  truth  of 
the  charge,  or  necessarily  tend  to  prove  it  true,  but  which  repels  the 
presumption  of  malice.  But  the  only  tendency  of  the  evidence  of- 
fered in  the  case  at  bar,  was  to  prove  the  truth  of  the  charge.  *  *  * 
Judgment  for  plaintiff  affirmed. 


Ch.  4)  MITIGATION.  141 

BURNETT  V.  SIMPKINS. 

(Supreme  Court  of  Illinois,  18G0.    24  111.  2G4.) 

This  was  an  action  of  assumpsit,  brought  to  the  Knox  circuit  court 
by  defendant  in  error,  against  plaintiff  in  error,  for  a  breach  of  mar- 
riage contract.  *  *  *  A  portion  of  the  defendant's  proof  went 
to  show  the  general  bad  character,  immorality,  and  lewdness  of  plain- 
tiff, all  of  which  was  withdrawn  from  the  consideration  of  the  jury 
by  the  court. ^^ 

Walker,  J.^^  In  actions  for  libel,  slander,  and  the  breach  of  mar- 
riage contract,  the  jury  may,  in  assessing  the  damages,  take  into  con- 
sideration the  injury  sustained  by  the  plaintiff  as  well  to  the  reputation 
and  standing  in  society,  as  the  situation  of  the  parties.  And  no  rule 
appeals  more  strongly  to  our  sense  of  justice,  or  is  more  consonant  to 
the  principles  of  right,  than  that  an  injury  to  the  reputation  of  the 
good  and  virtuous,  should  be  compensated  in  damages.  And  the 
proposition  is  too  plain  to  be  denied  by  any,  that  an  injury  to  the  char- 
acter of  a  virtuous  and  good  woman,  is  greater  than  to  that  of  one 
who  is  depraved  and  abandoned.  To  place  the  character  of  the  two 
upon  the  same  level,  and  to  hold  that  an  injury  to  the  one  is  no  great- 
er wrong  than  to  the  other,  is  to  confound  all  distinction  between  virtue 
and  vice,  the  good  and  the  depraved.  That  there  ever  has  been  and  will 
continue  to  be  a  difference,  is  as  obvious  as  that  virtue  is  preferable 
to  vice. 

No  court  has  ever  announced  as  a  rule,  in  the  assessment  of  damages, 
that  a  slander  to  the  character  of  the  low  and  depraved,  is  to  be  com- 
pensated by  the  same  measure  as  if  it  had  been  inflicted  upon  the  char- 
acter of  the  good  and  upright.  Such  a  rule  can  never  prevail  while 
any  distinction  is  made  in  character.  When  all  distinction  is  lost,  then, 
and  not  till  then,  will  the  same  rule,  in  measuring  the  damages,  be  ap- 
plied. In  assessing  damages  for  the  breach  of  a  marriage  contract, 
the  doctrine  is  well  settled,  that  the  jury  may  take  into  consideration 
all  the  injury  sustained,  whether  it  be  from  anguish  of  mind,  from 
blighted  affections,  or  disappointed  hopes,  as  well  as  injury  to  char- 
acter, immediately  resulting  from  the  breach  of  the  promise.  And 
this  court  has  repeatedly  held,  that  evidence  of  a  seduction,  the  conse- 
quence of  the  marriage  contract,  may  be  given  in  aggravation  of  the 
damages.  It  will  not  be  insisted  that  the  breach  of  promise  will  occa- 
sion the  same  anguish  of  mind,  or  produce  the  same  injury  to  the  rep- 
utation of  a  prostitute,  as  to  a  pure  and  virtuous  woman.  Nor  can  a 
seduction  result  in  the  same  injury  to  her  character,  as  to  that  of  a 
virtuous  female.  And  these  are  proper  considerations  for  the  jury 
in  estimating  damages.  If  injury  to  the  feelings  and  character  of  the 
party  injured  could  not  be  considered  by  the  jury,  there  would  be 

11  The  statement  of  facts  is  abridged  from  that  found  in  the  official  report. 

12  Part  of  the  opinion  is  omitted. 


142  DISCRETIONARY   DAMAGES.  (Part   4 

more  plausibility  in  the  position  that  evidence  of  bad  character  of  the 
plaintiff  could  not  be  received  in  mitigation.  But  if  the  plaintiff  may 
g-o  outside  of  a  mere  pecuniary  loss,  and  enhance  the  damages  by  show- 
ing mental  suffering,  loss  of  position  and  character,  it  would  seem  to 
follow  that  the  defendant  may  show  in  mitigation  the  want  of  char- 
acter, or  one  that  is  not  above  suspicion. 

If  the  previous  bad  charav.ter  for  virtue  were  not  known  to  defend- 
ant when  he  entered  into  the  engagement,  and  it  came  to  his  knowl- 
edge subsequently,  it  would  absolve  him  from  its  performance,  upon 
the  grounds  that  it  was  a  fraud  upon  the  contract.  But  while  this  is 
true,  if  the  want  of  virtue  on  the  part  of  the  plaintiff  was  known  to 
defendant  at  the  time,  it  forms  no  grounds  of  defense  to  the  action, 
but  it  may  be  shown  in  mitigation,  for  the  reason  that  its  breach  does 
not  result  in  the  same  injury  as  if  the  character  had  been  good.  And 
we  regard  this  as  especially  true,  when  the  plaintiff  seeks  to  enhance 
the  damages  by  giving  evidence  of  a  seduction  resulting  from  the  con- 
tract. If  she  may  thus  aggravate  the  damages,  the  defendant  must 
be  permitted  to  show  that  she  was,  previous  to  the  engagement,  and 
without  any  act  of  his,  wanting  in  virtue,  in  order  to  avoid  such  in- 
creased damages.  If,  at  the  time  of  making  the  contract,  she  was  virtu- 
ous, and  it  was  by  the  act  of  the  defendant  she  ceased  to  be  so,  then 
he  cannot  be  heard  to  prove  the  want  of  virtue  in  mitigation.  But  if 
she  has  previously,  or  during  the  continuance  of  the  engagement,  pros- 
tituted her  person  to  another,  and  the  defendant  has,  without  a  knowl- 
edge of  the  fact,  entered  into  the  contract,  or  continued  it,  he  may 
show  the  fact  in  mitigation.  The  evidence  of  a  want  of  virtue  on  the 
part  of  defendant  in  error  in  this  case,  was  therefore  admissible  in 
mitigation  of  damages,  although  the  plaintiff  in  error  may  have  been 
informed  of  the  fact  at  the  time  he  entered  into  the  contract,  and  it 
should  not  have  been  excluded  from  the  jury.  And  the  court  erred  in 
not  giving  defendant's   fourteenth  instruction,  which  announces  this 

flllf*  ^         H»         "K   13 

13  A  subsec|uent  offer  by  defendant,  after  breach,  to  marry  plaintiff,  is  not 
admissible  in  mitigation.  VVliite  v.  Murtland,  71  111.  250,  22  Am.  Rep.  100 
(1874). 

The  subject  of  mitigation  in  slander  and  libel  will  be  found  much  more 
fully  treated  in  Irvine's  Cases  on  Evidence. 

Clark,  .T.,  in  Bunting  v.  Hogsett,  139  Pa.  363,  21  Atl.  33,  12  L.  R.  A.  268, 
23  Am.  St.  Rep.  192  (1891),  said: 

"There  was  evidence  in  this  case  that  the  plaintiff,  Henry  C.  Bunting,  at 
the  time  of  the  trial,  was  suffering  from  what  is  known  as  'Bright's  disease 
of  the  kidneys.'  *  *  *  The  court  very  properly,  therefore,  instructed  the 
jury  that  there  was  proof  of  this  fact  in  the  case ;  that  it  was  a  dangerous 
disease;  and  that  they  should  take  this  into  consideration  in  determining  Mr. 
Bunting's  expectancy  of  life  and  the  loss  of  his  earning  power.  Nor  was 
there  any  evidence  to  justify  the  jurj'  in  finding  that  this  disease  was  caused 
by  the  personal  injuries  received  in  the  collision.  The  judgment  is  therefore 
affirmed." 

But  see  L.,  N.  A.  &  C.  Ry.  Co.  v.  Snyder,  117  Ind.  435,  20  N.  E.  284,  3  L. 
R.  A.  434,  10  Am.  St.  Rep.  00  (1889). 


cVj   rt.r  t 


Ch.  4)  MITIGATION.  143 

PALMER  V.  CROOIC 

(Supreme  Judicial  Court  of  Massachusetts,  1856.    7  Gray,  418.) 

Action  of  tort  for  seducing  the  plaintiff's  wife,  and  alienating  her 
affections  from  him.  At  the  trial  the  defendant  introduced  the  deposi- 
tions of  the  wife's  father  and  mother,  tending  to  prove  that  the  plain- 
tiff had  cruelly  treated  his  wife,  and  neglected  to  provide  for  her,  in 
consequence  of  which  she  had  returned  to  her  father's  house  before 
the  time  of  the  alleged  seduction.  The  court  excluded  certain  parts  ot 
the  depositions  including  those  parts  which  tended  to  show  that  the 
wife  of  the  plaintiff  complained  of  his  ill  treatment  prior  to  the  alleg- 
ed criminal  intercourse  with  the  defendant. 

BiGELOW,  J.^*  *  *  *  These  parts  were  competent,  and  should 
have  been  admitted.  In  actions  for  criminal  conversation,  one  of  the 
principal  grounds  on  which  the  husband  is  allowed  to  recover  damages 
is,  that  by  the  wrongful  act  of  the  defendant  he  has  been  deprived  of 
the  confidence  and  affection  of  the  wife.  If  the  defendant  invaded 
domestic  peace,  destroyed  conjugal  felicity,  and  by  his  solicitations 
alienated  and  seduced  the  wife's  affections  from  a  kind  and  tender 
husband,  he  inflicted  a  much  more  grievous  wrong,  and  incurred  a  far 
heavier  penalty  in  damages,  than  he  would  have  done  if  love  and 
harmony  and  affectionate  intercourse  had  been  previously  impaired 
or  lost,  through  the  misconduct  and  cruel  treatment  of  the  husband. 

The  state  of  the  wife's  mind  and  feelings  towards  the  husband  before 
the  alleged  infidelity  is  therefore  directly  in  issue,  as  bearing  on  the 
question  of  damages;  and  it  may  be  shown,  in  the  usual  mode  in  which 
proof  of  such  a  fact  is  made  in  courts  of  law,  by  evidence  of  declara- 
tions and  statements  of  the  wife,  indicating  the  condition  of  her  af- 
fections towards  her  husband  during  their  cohabitation  and  prior  to 
the  alleged  seduction.     *     *     * 


HOTCHKISS  V.  OLIPHANT. 

(Supreme  Court  of  New  Yorli,  1842.     2  Hill,  510.) 

Nelson,  C.  J.^*  *  *  *  The  counsel  for  the  defendant  offered 
in  evidence,  by  way  of  mitigation,  an  article  subsequently  published  in 
his  paper,  commenting  somewhat  at  large  upon  the  same  general  sub- 
ject to  which  the  libel  related;  and  also  containing,  what  purported  to 
be  a  letter  from  the  plaintiff's  attorneys,  calling  for  a  retraction  of  the 
charges  before  made.  The  judge  rejected  the  offer,  at  the  same  time 
observing,  however,  that  he  would  admit  the  evidence,  if  the  counsel 

1*  Tart  of  the  opinion  is  omitted- 


144  DISCRETIONARY  DAMAGES.  (Part   4 

for  the  defendant  would  prove  that  the  letter  had  been  actually  ad- 
dressed to  the  defendant  by  the  attorneys. 

If  this  article  had  contained  a  full  and  unqualified  withdrawal  of  the 
charges  in  the  libel,  unaccompanied  with  other  offensive  or  libelous 
matter,  and  had  been  intended  and  published  as  some  slight  atonement 
for  the  injury  done,  I  think  it  would  have  been  admissible  for  the  pur- 
pose for  which  it  was  offered.  It  would  have  afforded  proof  not  only 
of  a  disposition  to  repair  the  wrong-  inflicted,  but  of  actual  reparation 
to  some,  extent.  The  defendant  should  have  the  benefit  of  a  "locus 
penitentiae,"  when  evidenced  by  an  honest  endeavor  and  in  a  way  to 
make  atonement  to  as  great  an  extent  as  is  within  his  power.  But  the 
article  in  question  contained  no  recantation;  and  besides,  it  was  filled 
with  additional  injuries  and  calumnious  imputations  upon  the  plain- 
tiff's character.  If  the  defendant  had  become  satisfied  that  the  charges 
which  he  had  unwittingly  copied  were  unfounded,  common  honesty 
and  a  decent  respect  for  the  rights  of  the  injured  party  called  for  an 
unqualified  withdrawal.  Hesitation,  lurking  insinuation,  an  attempted 
perversion  of  the  plain  import  of  the  language  used  in  the  libelous 
article,  or  a  substitution  of  one  calumny  for  another,  only  aggravate 
the  original  offence  and  show  a  consciousness  of  the  wrong  done  with- 
out the  manliness  or  magnanimity  to  repair  it.     *     *     * 


PART  V. 
COMPENSATORY  DAMAGES. 


CHAPTER  I. 
GENERAL  LIMITATIONS. 


SECTION  1.— DIRECT  AND  CONSEQUENTIAL  DAMAGES. 

I.  In  Tort.  -    - 


MILWAUKEE  &  ST.  P.  RY.  CO.  v.  KELLOGG. 

(Supreme  Court  of  United  States,  1876.    94  U.  S.  469,  24  L.  Ed.  256.) 

This  action  was  brought  to  recover  compensation  for  the  destruc- 
tion by  fire  of  a  sawmill  and  a  quantity  of  lumber  belonging  to  the 
plaintiff,  and  situated  on  the  bank  of  the  Mississippi  river.  Through 
the  negligence  of  the  defendants,  their  steamboat,  the  Jennie  Brown, 
caught  fire.  This  was  communicated  to  defendant's  elevator,  and  from 
thence  to  the  plaintiff's  mill  and  lumber,  situated  538  feet  and  388  feet 
distant  from  the  elevator,  respectively.  An  unusually  strong  wind  was 
blowing.    Judgment  for  plaintiff.    Defendants  appeal. 

Strong,  J.^  *  *  *|  'phe  next  exception  is  to  the  refusal  of  the 
court  to  instruct  the  jury  as  requested,  that  "if  they  believed  the 
sparks  from  the  Jennie  Brown  set  fire  to  the  elevator  through  the  neg- 
ligence of  the  defendants,  and  the  distance  of  the  elevator  from  the 
nearest  lumber  pile  was  three  hundred  and  eighty-eight  feet,  and  from 
the  mill  five  hundred  and  thirty-eight  feet,  then  the  proximate  cause  of 
the  burning  of  the  mill  and  lumber  was  the  burning  of  the  elevator, 
and  the  injury  was  too  remote  from  the  negligence  to  afford  a  ground 
for  a  recovery.'^  This  proposition  the  court  declined  to  affirm,  and  in 
lieu  thereof  submitted  to  the  jury,  to  find  whether  the  burning  of  the 
mill  and  lumber  was  the  result  naturally  and  reasonably  to  be  expected 
from  the  burning  of  the  elevator;  whether  it  was  a  result  which,  un- 
der the  circumstances,  would  naturally  follow  from  the  burning  of  the 

1  Part  of  the  oiiinion  is  omitted,  and  tlie  statement  of  facts  is  rewritten. 
Gilb.Dam.— 10  (145) 


146  COMPENSATORY  DAMAGES.  (Part   5 

elevator;  and  whether  it  was  the  result  of  the  continued  effect  of  the 
sparks  from  the  steamboat,  without  the  aid  of  other  causes  not  reason- 
ably to  be  expected.  All  this  is  alleged  to  have  been  erroneous.  The 
assignment  presents  the  oft-embarrassing  question,  what  is  and  what 
is  not  the  proximate  cause  of  an  injury.  The  point  propounded  to  the 
court  assumed  that  it  was  a  question  of  law  in  this  case;  and  in  its 
support  the  two  cases  of  Ryan  v.  New  York  Central  Railroad  Co.,  35 
N.  Y.  210,  91  Am.  Dec.  49,  and  Pennsylvania  Railroad  Co.  v.  Kerr,  63 
Pa.  353,  1  Am.  Rep.  431,  are  relied  upon.  Those  cases  have  been  the 
subject  of  much  criticism  since  they  were  decided ;  and  it  may,  per- 
haps, be  doubted  whether  they  have  always  been  quite  understood.  If 
they  were  intended  to  assert  the  doctrine  that  when  a  building  has 
been  set  on  fire  through  the  negligence  of  a  party,  and  a  second  build- 
ing has  been  fired  from  the.  first,  it  is  a  conclusion  of  law  that  the  own- 
er of  the  second  has  no  recourse  to  the  negligent  wrongdoer,  they  have 
not  been  accepted  as  authority  for  such  a  doctrine,  even  in  the  states 
where  the  decisions  were  made.  Webb  v.  Rome,  Watertown,  &  Og- 
densburg  Railroad  Co.,  49  N.  Y.  420,  10  Am.  Rep.  389,  and  Pennsyl- 
vania Railroad  Co.  v.  Hope,  80  Pa.  373,  21  Am.  Rep.  100.  And  cer- 
tainly they  are  in  conflict  with  numerous  other  decided  cases.  Kel- 
logg v.  Chicago  &  Northwestern  Railroad  Co.,  26  Wis.  224,  7  Am.  Rep. 
69 ;  Perley  v.  The  Eastern  Railroad  Co.,  98  Mass.  414,  96  Am.  Dec. 
645 ;  Higgins  v.  Dewey,  107  Mass.  494,  9  Am.  Rep.  63 ;  Pent  v.  To- 
ledo, Peoria,  &  Warsaw  Railroad  Co.,  59  111.  349,  14  Am.  Rep.  13. 

The  true  rule  is,  that  what  is  the  proximate  cause  of  an  injury  is 
ordinarily  a  question  for  the  jury.  It  is  not  a  question  of  science  or  of 
legal  knowledge.  It  is  to  be  determined  as  a  fact,  in  view  of  the  cir- 
cumstances of  fact  attending  it.  The  primary  cause  may  be  the  prox- 
imate cause  of  a  disaster,  though  it  may  operate  through  successive  in- 
struments, as  an  article  at  the  end  of  a  chain  may  be  removed  by  a 
force  applied  to  the  other  end,  that  force  being  the  proximate  cause 
of  the  movement,  or  as  in  the  oft-cited  case  of  the  squib  thrown  in  the 
market-place.  Scott  c.  Shepherd,  2  W.  Bl.  892.  The  question  always 
is.  Was  there  an  unbroken  connection  between  the  wrongful  act  and' 
the  injury,  a  continuous  operation?  Did  the  facts  constitute  a  con-, 
tinuous  succession  of  events,  so  linked  together  as  to  make  a  natural 
whole,  or  was  there  some  new  and  independent  cause  intervening  be- 
tween the  wrong  and  the  injury?  It  is  admitted  that  the  rule  is  diffi- 
cult of  application.  But  it  is  generally  held,  that,  in  order  to  warrant  a 
finding  that  negligence,  or  an  act  not  amounting  to  wanton  wrong,  is 
the  proximate  cause  of  an  injury,  it  must  appear  that  the  injury  was 
the  natural  and  probable  consequence  of  the  negligence  or  wrongful 
act,  and  that  it  ought  to  have  been  foreseen  in  the  light  of  the  attend- 
ing circumstances.  These  circumstances,  in  a  case  like  the  present, 
are  the  strength  and  direction  of  the  wind,  the  combustible  character 
of  the  elevator,  its  great  height,  and  the  proximity  and  combustible 
jiature  of  the  sawmill  and  the  piles  of  lumber.    Most  of  these  circum- 


Ch.  1)  DIRECT    AND    CONSEQT'ENTIAL   DAMAGES.  147 

stances  were  ig-norcd  in  the  request  for  instruction  to  the  jury.  Yet 
it  is  obvious  that  the  immediate  and  inseparable  consequences  of  neg- 
Hgcntly  firing  the  elevator  would  have  been  very  different  if  the  wind 
had  been  less,  if  the  elevator  had  been  a  low  building  constructed  of 
stone,  if  the  season  had  been  wet,  or  if  the  lumber  and  the  mill  had 
been  less  combustible.  And  the  defendants  might  well  have  anticipat- 
ed or  regarded  the  probable  consequences  of  their  negligence  as  much 
more  far-reaching  than  would  have  been  natural  or  probable  in  other 
circumstances.  We  do  not  say  that  even  the  natural  and  probable 
consequences  of  a  wrongful  act  or  omission  are  in  all  cases  to  be 
chargeable  to  the  misfeasance  or  nonfeasance.  They  are  not  when 
there  is  a  sufficient  and  independent  cause  operating  between  the  wrong 
and  the  injury.  In  such  a  case  the  resort  of  the  sufferer  must  be  to 
the  originator  of  the  intermediate  cause.  But  when  there  is  no  inter- 
mediate efficient  cause,  the  original  wrong  must  be  considered  as  reach- 
ing to  the  eft'ect,  and  proximate  to  it.  The  inquiry  must,  therefore,  al- 
ways be  whether  there  was  any  intermediate  cause  disconnected  from 
the  primary  fault,  and  self -operating,  which  produced  the  injury.  Here 
lies  the  difficulty.  But  the  inquiry  must  be  answered  in  accordance 
with  common  understanding.  In  a  succession  of  dependent  events  an 
interval  may  always  be  seen  by  an  acute  mind  between  a  cause  and  its 
effect,  though  it  may  be  so  imperceptible  as  to  be  overlooked  by  a  com- 
mon mind.  Thus,  if  a  building  be  set  on  fire  by  negligence,  and  an 
adjoining  building  be  destroyed  without  any  negligence  of  the  occu- 
pants of  the  first,  no  one  would  doubt  that  the  destruction  of  the  sec- 
ond was  due  to  the  negligence  that  caused  the  burning  of  the  first. 
Yet,  in  truth,  in  a  very  legitimate  sense,  the  immediate  cause  of  the 
burning  of  the  second  was  the  burning  of  the  first.  The  same  might 
be  said  of  the  burning  of  the  furniture  in  the  first.  Such  refinements 
are  too  minute  for  rules  of  social  conduct.  In  the  nature  of  things, 
there  is  in  every  transaction  a  succession  of  events,  more  or  less  de- 
pendent upon  those  preceding,  and  it  is  the  province  of  a  jury  to  look 
at  this  succession  of  events  or  facts,  and  ascertain  whether  they  are 
naturally  and  probably  connected  with  each  other  by  a  continuous  se- 
quence, or  are  dissevered  by  new  and  independent  agencies,  and  this 
must  be  determined  in  view  of  the  circumstances  existing  at  the  time. 
If  we  are  not  mistaken  in  these  opinions,  the  Circuit  Court  was 
correct  in  refusing  to  affirm  the  defendants'  proposition,  and  in  sub- 
mitting to  the  jury  to  find  whether  the  burning  of  the  mill  and  the 
lumber  was  a  result  naturally  and  reasonably  to  be  expected  from  the 
burning  of  the  elevator,  under  the  circumstances,  and  whether  it  was 
the  result  of  the  continued  influence  or  effect  of  the  sparks  from  the 
boat,  without  the  aid  or  concurrence  of  other  causes  not  reasonably  to 
have  been  expected.  The  jury  found,  in  substance,  that  the  burning 
of  the  mill  and  lumber  was  caused  by  the  negligent  burning  of  the 
elevator,  and  that  it  was  the  unavoidable  consequence  of  that  burning. 
This,  in  effect,  was  finding  that  there  was  no  intervening  and  independ- 


148  COMPENSATORY  DAMAGES.  (Part    5 

ent  cause  between  the  negligent  conduct  of  the  defendants  and  the 
injury  to  the  plaintiff.    The  judgment  must,  therefore,  be  affirmed. 
Judgment  affirmed.^ 


WOOD  V.  PENNSYLVANIA  R.  CO. 

(Supreme  Court  of  Pennsylvania,  1896.    177  Pa.  306,  35  Atl.  699, 
35  L.  R.  A.  199,  55  Am.  St.  Rep.  728.) 

Dean/J.3  *  *  *  On  the  26th  of  October,  1893,  the  plaintiff, 
having  bought  a  return  ticket,  went  as  a  passenger  upon  the  railroad 
of  the  defendant  company  from  Frankford  to  Holmesburg.  After 
spending  the  day  there,  attending  to  some  matters  of  business,  he 
concluded  to  come  back  upon  a  way  train,  due  at  Holmesburg  at  5 
minutes  after  6  in  the  evening.  While  waiting  for  this  train,  the  plain- 
tiff stood  on  the  platform  of  the  station,  which  was  on  the  north  side 
of  the  tracks,  at  the  eastern  end  of  the  platform,  with  his  back  against 
the  wall  at  the  corner.  To  the  eastward  of  the  station,  a  street  crosses 
the  railroad  at  grade.  How  far  this  crossing  is  from  the  station  does 
not  appear  from  the  evidence.  It  was  not  so  far  away,  however,  but 
that  persons  on  the  platform  could  see  objects  at  the  crossing.  For  at 
least  150  yards  to  the  eastward  of  the  crossing  the  railroad  is  straight, 
and  then  curves  to  the  right.  About  6  o'clock  an  express  train  coming 
from  the  east  upon  the  north  track  passed  the  station,  and  the  plain- 
tiff, while  standing  in  the  position  described,  was  struck  upon  the  leg 
by  what  proved  to  be  the  dead  body  of  a  woman,  and  was  injured. 
The  headlight  of  the  approaching  locomotive  disclosed  to  one  of  the 
witnesses  who  stood  on  the  platform  two  women  in  front  of  the  train 
at  the  street  crossing,  going  from  the  south  to  the  north  side  of  the 
tracks.  One  succeeded  in  getting  across  in  safety,  and  the  other  was 
struck  just  about  as  she  reached  the  north  rail.  How  the  woman  came 
to  be  upon  the  track  there  is  nothing  in  the  evidence  to  show.  There 
was  evidence  that  no  bell  was  rung  or  whistle  blown  upon  the  train 
which  struck  the  woman  before  it  came  to  the  crossing,  and  some  evi- 
dence that  it  was  running  at  the  rate  of  from  50  to  60  miles  an  hour. 
Upon  this  state  of  facts,  the  trial  judge  entered  a  nonsuit.     *     *     * 

Was  the  negligence  of  defendant  the  proximate  cause  of  plaintiff's 
injury?     Judge  Pennypacker,  delivering  the  opinion  of   a  majority 

2  Ck)mpare  Haverly  v.  State  Line  &  S.  R.  Co.,  135  Pa.  50,  19  Atl.  1013,  20 
Am.   St.  Rep.  848  (1890). 

Probably  the  most  generally  known  discussion  of  the  distinction  between 
direct  and  consequential  results  is  to  be  found  in  the  celebrated  "squib  case." 
Scott  V.  Shepherd,  2  W.  Bl.  892  (1772).  And  see,  reviewing  the  earlier  cases, 
Leame  v.  Bray,  3  East,  503  (1803),  and  Cowell  v.  Laming,  1  Camp.  497  (1808). 
This  subject  involves  the  same  considerations  as  the  distinctions  between 
trespass  and  trespass  on  the  case.  For  the  earliest  discussions  of  the  larger 
subject,  the  student  is  referred  to  Hepburn's  Cases  on  Torts  and  to  ^\^littier's 
Cases  on  Pleading. 

3  Pai*t  of  the  opinion  is  omitted. 


Ch.  1)  DIRECT    AND    CONSEQUENTIAL    DAMAGES.  lid 

of  the  court  below,  concluded  it  was  not,  and  refused  to  take  oflf  the 
nonsuit.  Applying  the  rule  in  Hoag  v.  Railroad  Co.,  85  Pa.  293,  27 
Am.  Rep.  653,  to  these  facts,  the  question  on  which  the  case  turns  is : 
"Was  the  injury  the  natural  and  probable  consequence  of  the  negli- 
gence— such  a  consequence  as,  under  the  surrounding  circumstances, 
might  and  ought  to  have  been  foreseen  by  the  wrongdoer  as  likely  to 
flow  from  his  act?"     *     *     * 

The  rule  quoted  in  Hoag  v.  Railroad  Co.,  supra,  is,  in  substance,  the 
conclusion  of  Lord  Bacon,  and  the  one  given  in  Brown's  Legal  ^lax- 
ims.  It  is  not  only  the  well-settled  rule  of  this  state,  but  is,  generally, 
that  of  the  United  States.  Prof.  Jaggard,  in  his  valuable  work  on 
Torts,  after  a  reference  to  very  many  of  the  cases  decided  in  a  large 
number  of  the  states,  among  them  Hoag  v.  Railroad  Co.,  comes  to  this 
conclusion:  "It  is  admitted  that  the  rule  is  difficult  of  application.  But 
it  is  generally  held  that,  in  order  to  warrant  a  finding  that  negligence, 
or  an  act  not  amounting  to  wanton  wrong,  is  a  proximate  cause  of  an 
injury,  it  must  appear  that  the  injury  was  the  natural  and  probable 
consequence  of  the  negligence  or  wrongful  act,  and  that  it  ought  to 
have  been  foreseen  in  the  light  of  the  attending  circumstances."  Jag. 
Torts,  c.  5.  Judge  Cooley  states  the  rule  thus :  "If  the  original  act  was 
wrongful,  and  would  naturally,  according  to  the  ordinary  course  of 
events,  prove  injurious  to  some  others,  and  result,  and  does  actually 
result,  in  injury,  through  the  intervention  of  other  causes  not  wrong- 
ful, the  injury  shall  be  referred  to  the  wrongful  cause,  passing  through 
those  which  were  innocent."  Cooley,  Torts,  GO.  This,  also,  is  in  sub- 
stance the  rule  of  Hoag  v.  Railroad  Co.  All  the  speculations  and  re- 
finements of  the  philosophers  on  the  exact  relations  of  cause  and  ef- 
fect help  us  very  little  in  the  determination  of  rules  of  social  conduct. 
The  juridical  cause,  in  such  a  case,  as  we  have  held  over  and  over,  is 
best  ascertained  in  the  practical  affairs  of  life  by  the  application  to  the 
facts  of  the  rule  in  Hoag  v.  Railroad  Co.  Adopting  that  rule  as  the 
test  of  defendant's  liability,  how  do  we  determine  the  natural  and  prob- 
able consequences,  which  must  be  foreseen  of  this  act?  We  answer  in 
this  and  all  like  cases:  from  common  experience  and  observation. 
The  probable  consequence  of  crossing  a  railroad  in  front  of  a  near 
and  approaching  train  is  death,  or  serious  injury.  Therefore,  acting 
from  an  impulse  to  self-preservation,  or  on  the  reflection  that  prompts 
to  self-preservation,  we  are  deterred  from  crossing.  Our  conduct  is 
controlled  by  the  natural  and  probable  consequence  of  what  our  ex- 
perience enables  us  to  foresee.  True,  a  small  number  of  those  who  have 
occasion  to  cross  railroads  are  reckless,  and,  either  blind  to  or  disre- 
gardful  of  consequences,  cross,  and  are  injured,  killed,  or  barely  escape. 
But  this  recklessness  of  the  very  few  in  no  degree  disproves  the  foresee- 
ableness  of  the  consequences  by  mankind  generally.  Again,  the  com- 
petent railroad  engineer  knows  from  his  own  experience  and  that  of 
others  in  like  employment  that  to  approach  a  grade  highway  crossing 
with  a  rapidly  moving  train  without  warning  is  dangerous  to  the  lives 


150  COMPENSATORY  DAMAGES.  (Part    5 

and  limbs  of  the  public  using  the  crossing.  He  knows  death  and  injury- 
are  the  probable  consequences  of  his  neglect  of  duty;  therefore  he 
gives  warning.  But  does  any  one  believe  the  natural  and  probable 
consequence  of  standing  50  feet  from  a  crossing,  to  the  one  side  of  a 
railroad,  when  a  train  is  approaching,  either  with  or  without  warning, 
is  death  or  injury?  Do  not  the  most  prudent,  as  well  as  the  public 
generally,  all  over  the  land,  do  just  this  thing  every  day,  without  fear 
of  danger?  The  crowded  platforms  and  grounds  of  railroad  stations, 
generally  located  at  crossings,  alongside  of  approaching,  departing, 
and  swiftly  passing  trains,  prove  that  the  public,  from  experience  and 
observation,  do  not,  in  that  situation,  foresee  any  danger  from  trains. 
They  are  there  because,  in  their  judgment,  although  it  is  possible  a 
train  may  strike  an  object,  animate  or  inanimate,  on  the  track,  and  hurl 
it  against  them,  such  a  consequence  is  so  highly  improbable  that  it  sug- 
gests no  sense  of  danger.  They  feel  as  secure  as  if  in  their  homes.  To 
them  it  is  no  more  probable  than  that  a  train  at  that  point  will  jump 
the  track  and  run  over  them.  If  such  a  consequence  as  here  resulted 
was  not  natural,  probable,  or  foreseeable  to  anybody  else,  should  de- 
fendant, under  the  rule  laid  down  in  Hoag  v.  Railroad  Co.,  be  charge- 
able with  the  consequence?  Clearly,  it  was  not  the  natural  and  prob- 
able consequence  of  its  neglect  to  give  warning,  and  therefore  was  not 
one  which  it  was  bound  to  foresee.  The  injury,  at  most,  was  remotely 
possible,  as  distinguished  from  the  natural  and  probable  consequences 
of  the  neglect  to  give  warning.  As  is  said  in  Railroad  Co.  v.  Trich,  117 
Pa.  399,  11  Atl.  627,  2  Am.  St.  Rep.  672 :  "Responsibility  does  not  ex- 
tend to  every  consequence  which  may  possibly  result  from  negligence." 
What  we  have  said  thus  far  is  on  the  assumption  the  accident  was 
caused  solely  by  the  negligence  of  defendant,  or  by  the  concurring  neg- 
ligence of  defendant  and  the  one  killed  going  upon  the  track  with  a 
locomotive  in  full  view.  This  being  an  action  by  an  innocent  third 
person,  he  cannot  be  deprived  of  his  remedy  because  his  injury  result- 
ed from  the  concurrent  negligence  of  two  others.  He  fails  because  his 
injury  was  a  consequence  so  remote  that  defendant  could  not  reason- 
ably foresee  it.     *     *     * 


OILMAN  V.  NOYES. 

(Supreme  Court  of  New  Hampsliire,  1876.     57  N.  H.  627.) 

Case  for  carelessly  leaving  the  bars  down  of  plaintiff's  pasture 
whereby  his  cattle  and  sheep  escaped.  The  plaintiff  expended  time  and 
money  in  hunting  for  the  cattle,  and  the  sheep  were  lost.  The  evi- 
dence tended  to  show  that  the  sheep  were  destroyed  by  bears  after  es- 
caping from  the  pasture.  The  court,  inter  alia,  instructed  the  jury  that, 
if  the  sheep  escaped  in  consequence  of  the  bars  being  left  down,  and 
would  not  have  been  killed  but  for  the  act  of  the  defendant,  the  latter 
was  liable.    From  a  verdict  for  the  plaintiff,  the  defendant  appeals.    ^ 


4J- 

Ch.  1)  DIRECT    AND    CONSEQUENTIAL    DAMAGES.  151 

Smith,  j,*  *  *  *  In  this  case  the  evidence  tended  to  show  the 
intervention  of  a  new  cause  of  the  destruction  of  the  plaintiff's  sheep 
after  their  escape  from  his  pasture,  which  could  not  reasonably  have 
been  anticipated.  The  only  practicable  rule  to  be  drawn  from  all  the 
cases,  for  determining-  this  case,  it  seems  to  me,  is,  to  inquire  whether 
the  loss  of  the  plaintiff's  sheep  by  bears  was  an  event  which  might  rea- 
sonably have  been  anticipated  from  the  defendant's  act  in  leaving  his 
bars  down,  under  all  the  circumstances  of  this  case.  If  it  was  a  natur- 
al consequence  which  any  reasonable  person  could  have  anticipated, 
then  the  defendant's  act  was  the  proximate  cause.  If,  on  the  other 
hand,  the  bears  were  a  new  agency,  which  could  not  reasonably  have 
been  anticipated,  the  loss  of  the  sheep  must  be  set  down  as  a  remote 
consequence,  for  which  the  defendant  is  not  responsible. 

The  jury  were  instructed  that  if  the  sheep  escaped  in  consequence 
of  the  bars  being  left  down  by  the  defendant,  and  would  not  have  been 
killed  but  for  this  act  of  the  defendant,  he  was  liable.  Under  these  in- 
structions, the  jury  could  not  inquire  whether  the  destruction  of  the 
sheep  by  the  bears  was  an  event  which  might  reasonably  have  been 
anticipated  from  the  leaving  of  the  bars  down,  and  for  this  reason  I 
agree  that  the  verdict  must  be  set  aside. 

Ladd,  J.  I  am  unable  to  free  my  mind  from  considerable  doubt  as 
to  the  correctness  of  the  ground  upon  which  my  Brethren  put  the  de- 
cision of  this  case. 

The  defendant  requested  the  court  to  charge  that  if  the  jury  found 
that  the  sheep  were  killed  by  bears  after  their  escape,  the  damages 
would  be  too  remote.  This  the  court  declined  to  do,  but  did  instruct 
them  that  if  the  sheep  escaped  in  consequence  of  the  bars  being  left 
down  by  the  defendant,  and  would  not  have  been  killed  but  for  that 
act  of  the  defendant,  he  was  liable  for  their  value.  Both  the  request 
and  the  instruction  went  upon  the  ground  that  the  question  of  remote- 
ness— all  the  facts  being  found — was  for  the  court,  and  not  for  the 
jury.  Upon  that  distinct  and  simple  question  the  defendant  claimed 
one  way  and  the  court  held  the  other.  I  understand  it  to  be  the  opin- 
ion of  my  Brethren  that  neither  was  right;  that  the  question  of  remote- 
ness was  for  the  jury,  and  that  the  court  erred  in  not  so  treating  it. 
Whether  it  is  for  the  jury  or  the  court,  every  one  who  has  considered 
the  matter  will  agree  that  it  is  almost  always  a  troublesome  question, 
and  often  one  attended  with  profound  intrinsic  difficulty. 

The  verdict  here  settles  (1)  that  the  bars  were  left  down  by  the  de- 
fendant; (2)  that  the  sheep  escaped  in  consequence  thereof;  (3)  that 
they  would  not  otherwise  have  been  killed.  Was  the  defendant's  acl 
the  proximate  cause  of  the  damage?  Was  it  the  cause  in  such  sense 
that  the  law  will  take  cognizance  of  it  by  holding  the  defendant  liable 
to  make  reparation  in  damages?     And  is  that  question  one  for  the 

4  Only  parts  of  the  opinions  of  Sniitli  and  Ladd,  JJ.,  are  here  given ;  tlae 
rest  of  tlie  rei>ort  of  tlie  case  being  omitted,  and  tlie  statement  of  facts  is  re- 
written. 


152  COMPENSATORY  DAMAGES.  (Part   5 

court,  or  for  the  jury,  to  decide?  The  sheep  would  not  have  been 
killed,  the  jury  say,  but  for  that  act:  does  it  follow  that  the  damage 
was  not  too  remote?  Certainly,  I  think,  it  does  not.  That  one  event 
would  not  have  happened  but  for  the  happening  of  some  other,  an- 
terior in  point  of  time,  doubtless  goes  somewhat  in  the  direction  of 
establishing  the  relation  of  cause  and  effect  between  the  two.  But  no 
rule  of  law  as  to  remoteness  can,  as  it  seems  to  me,  be  based  upon  that 
one  circumstance  of  relation  alone,  because  the  same  thing  may  very 
likely  be  true  with  respect  to  many  other  antecedent  events  at  the  same 
time.  The  human  powers  are  not  sufficient  to  trace  any  event  to  all 
its  causes,  or  to  say  that  anything  which  happens  would  have  happened 
just  as  it  did  but  for  the  happening  of  myriads  of  other  things  more 
or  less  remote  and  apparently  independent.  The  maxim  of  the  school- 
men, "Causa  causantis,  causa  est  causati,"  may  be  true,  but  it  obviously 
leads  into  a  labyrinth  of  refined  and  bewildering  speculation  whither 
the  law  cannot  attempt  to  follow.  This  case  furnishes  an  illustration. 
The  jury  say  the  sheep  would  not  have  been  killed  by  bears  but  for  their 
escape,  and  would  not  have  escaped  but  for  the  bars  being  left  down. 
But  it  is  equally  certain,  without  any  finding  of  the  jury,  that  they  would 
not  have  been  killed  by  be?rs  if  the  bears  had  not  been  there  to  do  the 
deed;  and  how  many  antecedent  facts  the  presence  of  the  bears  may  in- 
volve, each  one  of  which  bore  a  causative  relation  to  the  principal  fact 
sufficiently  intimate  so  that  it  may  be  said  the  latter  would  not  have  oc- 
curred but  for  the  occurrence  of  the  former,  no  man  can  say.  Suppose 
the  bears  had  been  chased  by  a  hunter,  at  any  indefinite  time  before, 
whereby  a  direction  was  given  to  their  wanderings  which  brought 
them  into  the  neighborhood  at  this  particular  time ;  suppose  they  were 
repulsed  the  night  before  in  an  attack  upon  the  bee-hives  of  some 
farmer  in  a  distant  settlement,  and,  to  escape  the  stings  of  their  vindic- 
tive pursuers,  fled  with  nothing  but  chance  to  direct  their  course,  to- 
wards the  spot  where  they  met  the  sheep ;  suppose  they  were  frighten- 
ed that  morning  from  their  repast  in  a  neighboring  cornfield,  and  so 
brought  to  the  place  of  the  fatal  encounter  just  at  that  particular  point 
of  time. 

Obviously,  the  number  of  events  in  the  history  not  only  of  those  in- 
dividual bears,  but  of  their  progenitors  clear  back  to  the  pair  that,  in 
instinctive  obedience  to  the  divine  command,  went  in  unto  Noah  in  the 
ark,  of  which  it  may  be  said,  but  for  this  the  sheep  would  not  have 
been  killed,  is  simply  without  limit.  So  the  conduct  of  the  sheep,  both 
before  and  after  their  escape,  opens  a  field  for  the  speculation  equally 
profound  and  equally  fruitless.  It  is  easy  to  imagine  a  vast  variety 
of  circumstances,  without  which  they  would  not  have  made  their  es- 
cape just  at  the  time  they  did  though  the  bars  were  down,  or,  having 
escaped,  would  not  have  taken  the  direction  to  bring  them  into  the 
way  of  the  bears  just  in  season  to  be  destroyed,  as  they  were.  Such  a 
sea  of  speculation  has  neither  shores  nor  bottom,  and  no  such  test  can 


Ch.  1)  DIRECT    AND    CONSEQUENTIAL   DAMAGES.  153 

be  adopted  in  drawing  the  uncertain  line  between  consequences  that 
are  actionable  and  those  which  are  not. 

Some  aid  in  dealing  with  this  question  of  remoteness  in  particular 
cases  is  furnished  by  Lord  Bacon's  rule,  "In  jure,  causa  proxima,  non 
remota  spectatur,"  and  other  formulas  of  a  like  description,  because 
they  suggest  some  boundaries,  though  indistinct,  to  a  wilderness  that 
otherwise,  and  perhaps  in  the  nature  of  things,  has  no  limit. 

Where  damages  are  claimed  for  the  breach  of  a  contract,  it  has  been 
said  that  the  nearest  application  of  anything  like  a  fixed  rule  is,  that 
the  injury  for  which  compensation  is  asked  should  be  one  that  may 
be  fairly  taken  to  have  been  contemplated  by  the  parties  as  the  possible 
result  of  the  breach  of  contract.  Cockburn,  C.  J.,  in  Hobbs  v.  Lon- 
don &  S.  W.  Railway  Co.,  L.  R.  10  Q.  B.  117.  In  tort,  they  must  be 
the  legal  and  natural  consequence  of  the  wrongful  act.  Sedgwick  on 
Damages,  82,  and  cases  cited;  2  Gr.  Ev.  §§  252-256,  and  cases  cited. 
But  an  examination  of  the  numerous  cases  where  this  matter  has  been 
carefully  and  learnedly  discussed,  shows  that  the  intrinsic  difficulties 
of  the  subject  are  not  removed,  although  they  may  be  aided,  by  the  ap- 
plication of  such  rules.  Whether  the  extent,  degree,  and  intimacy  of 
causation  are  sufficient  to  bring  the  injurious  consequences  of  an  act 
within  the  circle  of  those  wrongs  for  which  the  law  supplies  a  remedy, 
still  remains  the  great  question  to  be  determined  in  each  case  upon  its 
individual  facts.  That  the  subject  is  one  beset  with  difficulties  is  con- 
spicuously shown  by  the  great  number  of  cases  from  Scott  v.  Shepherd, 
2  Wm.  Bl.  892  (where  Sir  William  Blackstone  was  unable  to  agree 
with  the  court),  down  to  the  present  time,  in  which  judges  of  equal 
learning  and  ability  have  differed  as  to  the  application  of  rules  by 
which  all  admit  they  are  to  be  governed.     *     *     * 

The  question  is  whether  courts  can  relieve  themselves  from  trouble- 
some inquiries  of  this  description  by  handing  them  over  to  the  jury 
for  determination.  I  am  not  now  prepared  to  admit  that  they  can.  In 
this  case,  as  we  have  seen,  the  verdict  settles  that  the  defendant  left  the 
bars  down,  that  the  sheep  escaped  in  consequence,  and  that  they  would 
not  have  been  killed  but  for  their  escape.  Clearly,  no  disputed  fact  is 
left  unsettled.  The  only  question  left  open  is,  whether  the  damage  is 
within  or  without  the  line  drawn  by  the  law  as  the  boundary  between 
those  injuries  for  which  the  law  compels  compensation  to  be  made  and 
those  for  which  it  does  not.  It  is  the  law  that  furnishes  remedies. 
Whether  any  act  or  default  amounts  to  a  legal  wrong  and  injury  for 
which  compensation  may  be  recovered  depends  upon  the  law,  and  is 
to  be  determined  by  an  application  of  rules  either  furnished  by  the 
Legislature  in  the  form  of  statutes,  or  found  existing  in  the  common 
law.  If  the  law  takes  no  cognizance  of  an  act,  furnishes  no  remedy 
for  its  injurious  results,  then  there  is  no  remedy;  and  though  it  may  be 
wrong  in  a  sentimental  or  moral  point  of  view,  the  sufferer  can  have 
no  recompense.;'  And  I  cannot  see  what  difference  it  makes  in  this 
respect  whether  the  rule  is  established  by  a  statute,  or  comes  from  the 


154  COMPENSATORY   DAMAGES.  (Part    5 

common  law.  That  A.  can  recover  damages  against  B.  for  an  assault 
and  battery  committed  upon  him  by  the  latter,  depends  just  as  much 
upon  a  rule  of  positive  law,  in  this  state,  as  that  he  may  recover  against 
C,  who  has  unlawfully  furnished  liquor  to  B.,  who,  in  a  state  of  in- 
toxication produced  by  the  liquor,  makes  the  assault.  One  is  a  provi- 
sion of  the  common  law;  the  other,  of  a  statute.  When  the  court  of 
South  Carolina  held  that  where  a  person,  against  the  law,  furnished  a 
slave  with  intoxicating  liquor,  by  which  he  became  drunk  and  lay  out 
all  night,  and  died  in  consequence,  the  owner  of  the  slave  could  re- 
cover his  value  against  the  person  who  furnished  the  liquor  (Berkley 
V.  Harrison,  cited  in  Sedgw.  on  Dam.  89),  they  were  declaring  and  ap- 
plying a  rule  of  law  as  much  as  though  that  remedy  had  been  given 
by  a  statute  similar  to  ours.  So  it  is  in  the  great  mass  of  cases  with 
which  the  books  are  filled :  the  question  as  to  remoteness  is  determin- 
ed by  the  court,  and  the  rule  administered  as  a  rule  of  law.  See  cases 
cited  in  Sedgw.  on  Dam.  c.  3,  passim.  A  large  number  of  English  and 
American  cases  might  be  added,  were  any  citation  of  authorities  neces- 
sary.    *     *     * 


McDonald  v.  snelling. 

(Supreme  Judicial  Court  of  Massachusetts,  1867.     14  Allen,  290, 
92  Am.  Dec.  768.) 

Foster,  J.o  *  *  *  Where  a  right  or  duty  is  created  wholly  by 
contract,  it  can  only  be  enforced  between  the  contracting  parties. 
But  where  the  defendant  has  violated  a  duty  imposed  upon  him  by  th^ 
common  law,  it  seems  just  and  reasonable  that  he  should  be  held  lia- 
ble to  every  person  injured,  whose  injury  is  the  natural  and  probable 
consequence  of  the  misconduct.  In  our  opinion  this  is  the  well  es- 
tablished and  ancient  doctrine  of  the  common  law,  and  such  a  liability 
extends  to  consequential  injuries,  by  whomsoever  sustained,  so  long 
as  they  are  of  a  character  likely  to  follow,  and  which  might  reason- 
ably have  been  anticipated  as  the  natural  and  probable  result  under  or- 
dinary circumstances  of  the  wrongful  act.  The  damage  is  not  too 
remote  if  according  to  the  usual  experience  of  mankind  the  result  was 
to  be  expected.  This  is  not  an  impracticable  or  unlimited  sphere  of  ac- 
countability, extending  indefinitely  to  all  possible  contingent  conse- 
quences. An  action  can  be  maintained  only  where  there  is  shown  to  be, 
first,  a  misfeasance  or  negligence  in  some  particular  as  to  which  there 
was  a  duty  towards  the  party  injured  or  the  community  generally; 
and,  secondly,  where  it  is  apparent  that  the  harm  to  the  person  or  prop- 
erty of  another  which  has  actually  ensued  was  reasonably  likely  to  en- 
sue from  the  act  or  omission  complained  of.     *     *     * 

It  is  clear  from  numerous  authorities  that  the  mere  circumstance  that 
there  have  intervened,  between  the  wrongful  cause  and  the  injurious 

5  Part  of  the  opinion  is  omitted. 


Ch.  1)  DinECT    AND    CONSKQUKNTIAL    DAMAGES.  155 

consequence,  acts  produced  by  the  volition  of  animals  or  of  human 
beings,  does  not  necessarily  make  the  result  so  remote  that  no  action 
can  be  maintained.  The  test  is  to  be  found,  not  in  the  number  of  in- 
tervening^ events  or  agents,  but  in  their  character,  and  in  the  natural 
and  probable  connection  between  the  wrong  done  and  the  injurious  con- 
sequence. So  long  as  it  affirmatively  appears  that  the  mischief  is  at- 
tributable to  the  negligence  as  a  result  which  might  reasonably  have 
been  foreseen  as  probable,  the  legal  liability  continues.     *     *     * 

Applying  these  principles  more  closely  to  the  facts  set  forth  in  this 
declaration  and  admitted  by  the  demurrer,  we  find  that  by  careless 
driving  the  defendant's  sled  was  caused  to  strike  against  the  sleigh  of 
one  Caker  with  such  violence  as  to  break  it  in  pieces,  throwing  Baker 
out,  frightening  his  horse,  and  causing  the  animal  to  escape  from  the 
control  of  its  driver  and  to  run  violently  along  Tremont  street  round  a 
corner,  near  by,  into  Eliot  street,  where  he  ran  over  the  plaintiff  and 
his  sleigh,  breaking  that  in  pieces  and  dashing  him  on  the  ground.  Up- 
on this  statement,  indisputably  the  defendant  would  be  liable  for  the 
injuries  received  by  Baker  and  his  horse  and  sleigh.  Why  is  he  not 
also  responsible  for  the  mischief  done  by  Baker's  horse  in  its  flight?  If 
he  had  struck  that  animal  with  a  whip  and  so  made  it  run  away,  would 
he  not  be  liable  for  an  injury  like  the  present?  By  the  fault  and  di- 
rect agency  of  his  servant  the  defendant  started  the  horse  in  uncon- 
trollable flight  through  the  streets.  As  a  natural  consequence,  it  was 
obviously  probable  that  the  animal  might  run  over  and  injure  persons 
traveling  in  the  vicinity.  Every  one  can  plainly  see  that  the  accident 
to  the  plaintiff  was  one  very  likely  to  ensue  from  the  careless  act.  We 
are  not  therefore  dealing  with  remote  or  unexpected  consequences,  not 
easily  foreseen  nor  ordinarily  likely  to  occur,  and  the  plaintiff's  case 
falls  clearly  within  the  rule  already  stated  as  to  the  liability  of  one 
guilty  of  negligence  for  the  consequential  damages  resulting  therefrom. 

These  views  are  fortified  by  numerous  decisions,  to  a  few  of  which 
it  may  be  expedient  to  refer.  It  was  recently  held  by  this  court  that 
when  a  horse  was  turned  loose  on  the  highway,  and  there  kicked  a  colt 
running  by  the  side  of  its  dam,  the  owner  of  the  horse  was  liable  for 
that  damage.  Barnes  v.  Chapin,  4  Allen,  444,  81  Am.  Dec.  710.  We 
cannot  distinguish  between  the  different  ways  of  letting  a  horse  loose 
upon  the  street;  whether  by  leaving  him  there  untied,  or  leaving  a 
gate  open,  or,  as  in  the  present  case,  by  driving  against  him,  and  thus 
causing  him  to  fun  away.  In  Powell  v.  Deveney,  3  Cush.  300,  50  Am. 
Dec.  738,  the  defendant's  servant  left  a  truck  standing  beside  a  side- 
walk in  a  public  street,  with  the  shafts  shored  up  by  a  plank  in  the 
usual  way.  Another  truckman  temporarily  left  his  loaded  truck  di- 
rectly opposite  on  the  other  side  of  the  same  street,  after  which  a  third 
truckman  tried  to  drive  his  truck  between  the  two  others.  In  attempt- 
ing to  do  so  with  due  care,  he  hit  the  defendant's  truck  in  such  a  man- 
ner as  to  whirl  its  shafts  round  on  the  sidewalk  so  that  they  struck  the 
plaintiff  who  was  walking  by.  antl  broke  her  le^.     For  this  injury  she 


156  COMPENSATORY  DAMAGES.  (Part    5 

was  allowed  to  maintain  her  action,  the  only  fault  imputable  to  the  de- 
fendant being  the  careless  position  in  which  the  truck  was  left  by  his 
servant  on  the  street,  which  was  treated  as  the  sole  cause  of  the  break- 
ing of  the  plaintiff's  leg,  and  in  legal  contemplation  sufficiently  proxi- 
mate to  render  the  defendant  responsible.     *     *     * 


GRIGGS  V.  FLECKENSTEIN. 

(Supreme  Court  of  Minnesota,  1869.    14  Minn.  81  [Gil.  62],  lOO  Am.  Dec.  199.) 

Defendant  left  his  team  unhitched  in  the  principal  street  of  Fari- 
bault. The  horses  became  frightened  and  ran  along  the  street.  A 
crowd  of  persons  came  out  into  the  street  and  hallooed  and  waved  their 
hats  for  the  purpose  of  stopping  the  horses,  which  caused  them  to 
swerve  from  their  course  and  drove  them  across  the  street,  so  that  they 
struck  the  team  of  one  Matthews  standing  properly  hitched.  Matthews' 
team  broke  loose  and  ran  across  the  street  against  a  horse  and  sleigh 
belonging  to  the  plaintiff,  breaking  the  plaintiff's  sleigh  and  injuring 
his  horse  so  that  he  afterward  died. 

McMiLi^AN,  J.6  *  *  *  There  is  no  controversy  about  the  fact 
that  the  running  away  of  the  defendant's  team  was  attributable  to  and 
occurred  at  first  though  the  negligence  of  the  defendant.  The  team 
had  not  stopped,  or  been  at  all  restrained  in  their  flight,  at  the  time  of 
the  appearance  of  the  persons  or  crowd  in  the  street.  The  attempt  to 
stop  the  team  was  not  successful,  but,  as  we  have  seen,  may  have  swerv- 
ed the  horses  from  the  direct  course  in  which  they  were  going  and  oc- 
casioned the  collision  with  the  Matthews  team  hitched  at  the  side  o£  the 
street.  The  attempt  to  stop  the  team  in  their  course  through  the  street 
was  certainly  proper,  and  would  ordinarily  be  expected.  Under  such 
circumstances  there  is  nothing  in  the  testimony  which  tends  to  show 
that  there  was  anything  wrongful,  careless,  or  improper  in  the  means 
resorted  to  by  these  persons  to  accomplish  this  purpose;  they  are, 
therefore,  entirely  innocent  and  free  from  blame.  If  they  contribut- 
ed to  the  injury  in  any  degree,  they  were  innocent  agents  in  the  mat- 
ter, and  as  their  interference  in  this  manner  was  proper,  and  was  such 
an  interference  as  would  be  embraced  in  the  ordinary  results  of  such 
an  occurrence  as  this  runaway,  it  would  in  nowise  excuse  the  defend- 
ant, or  relieve  him  from  the  injury  resulting  from  the  runaway  which 
occurred  through  his  negligence.  The  testimony  all  «shows  that  the 
defendant's  team  did  not  stop,  from  the  time  it  started  to  run  away  at 
the  post-office,  until  after  it  came  in  collision  with  and  started  the  Mat- 
thews team ;  that  the  interposition  of  the  crowd  or  persons  in  the  street 
was  for  the  purpose  of  stopping  the  runaway  team,  and  before  its  col- 
lision; nor  is  there  any  evidence  to  show  that  the  team  would  have 
stopped  if  the  crowd  had  not  interposed. 

8  Part  of  the  opinion  is  omitted,  and  the  statement  of  facts  is  rewritten. 


Ch.  1)  DIRECT    AND    CONSEQUENTIAL   DAMAGES.  157 

It  is  evident,  therefore,  that  the  running  away,  from  the  starting  of 
defendant's  team  till  the  collision,  was  a  single  occurrence,  and  what- 
evei'  influence  the  interposition  of  the  crowd  had  in  occasioning  the 
collision,  it  was  not  the  sole  cause  of  it ;  that  the  running  away  which 
occurred  through  the  defendant's  negligence  was,  in  part  at  least,  the 
occasion  of  it.  Both  causes,  therefore,  in  the  most  favorable  view  for 
the  defendant,  must  have  contributed  to  it;  and  as  the  defendant  is  re- 
sponsible through  his  negligence  for  one  of  the  agencies  through  which 
the  injury  occurred,  under  the  rule  we  have  stated  he  is  liable,  although 
without  the  agency  of  both  causes  the  accident  would  not  have  tran- 
spired. Matthews'  team,  it  appears,  was  hitched  to  a  post  in  front  of 
McGuery's  store,  and  there  is  nothing  tending  to  show  any  negligence 
or  carelessness  on  the  part  of  the  owner  of  the  team. 

The  immediate  cause  of  the  starting  of  Matthews'  team  was  the  col- 
lision of  the  defendant's  team  with  it,  and  the  injury  of  the  plaintiff's 
horse  was  caused  directly  by  Matthews'  team  striking  it.  This  brings 
the  case  within  the  rule  that  the  injury  must  be  the  natural  and  proxi- 
mate result  of  the  act  complained  of.  The  collision  with  Matthews' 
team  was  the  natural  but  not  necessary  consequence  of  the  running 
away  of  defendant's  team  in  the  street.  All  the  consequences  which 
actually  resulted  in  this  case  from  the  running  away  of  defendant's 
team  might,  we  think,  reasonably  have  been  expected  to  occur  by  the 
running  away  of  any  team,  under  similar  circumstances,  in  the  prin- 
cipal business  street  of  a  town,  and  the  running  away  of  the  defend- 
ant's team  was  the  efficient  cause  of  the  injury  to  plaintiff's  horse,  be- 
cause it  put  in  operation  the  force  which  was  the  immediate  and  di- 
rect cause  of  the  injury.  2  Greenl.  Ev.  §§  256,  268,  268a;  3  Parsons, 
Cont.  179-80. 

For  these  reasons  the  first  and  second  requests  submitted  by  the 
plaintiff,  which  were  refused,  should  have  been  given  to  the  jury;  and 
the  first  request  submitted  by  the  defendant,  as  explained  and  modi- 
fied by  the  court,  together  with  the  third  request  submitted  by  the  de- 
fendant, and  given  in  charge  to  the  jury,  should  have  been  refused. 

It  is  also  a  well-settled  rule  that  in  an  action  for  injury  to  person  or 
property  the  plaintiff'  cannot  recover  if  he  contributed  to  the  injury 
by  his  own  culpable  negligence,  or  if,  by  the  exercise  of  ordinary  care, 
he  could  have  avoided  the  injury.  1  Chit.  PI.  127,  and  authorities 
cited. 

The  question  of  the  plaintiff's  negligence  in  this  case  was  one  of 
fact,  to  be  determined  by  the  jury,  under  the  instructions  of  the  court 
as  to  what  constitutes  negligence.  St.  Paul  v.  Kuby,  8  Minn.  171  (Gil. 
125);  Johnson  v.  Winona  &  St.  P.  R.  Co.  11  Minn.  307  (Gil.  204), 
83  Am.  Dec.  83.  The  degree  of  care  required  of  the  plaintiff,  or  those 
in  charge  of  his  horse,  at  the  time  of  the  injury,  is  that  which  would 
be  exercised  by  a  person  of  ordinary  care  and  prudence  under  like  cir- 
cumstances. It  cannot  be  said  that  the  fact  of  leaving  the  horse  un- 
hitched is  in  itself  negligence.     Whether  it  is  negligence  to  leave  a 


158  COMPENSATORY  DAMAGES.  (Part   5 

horse  unhitched  must  depend  upon  the  disposition  of  the  horse ;  wheth- 
er he  was  under  the  observation  and  control  of  some  person  all  the 
time,  and  many  other  circumstances;  and  is  a  question  to  be  deter- 
mined by  the  jury  from  the  facts  of  each  case.  Lynch  v.  Nurdin,  1 
Q.  B.  29;   1  Hill.  Torts,  154;   Park  v.  O'Brien,  23  Conn.  339. 

It  was  therefore  proper  for  the  plaintiff  to  show,  by  his  testimony, 
that  his  horse  was  trustworthy  to  stand  unhitched  in  the  street,  and 
the  question  put  to  the  witness  for  that  purpose  should  have  been  per- 
mitted. It  was  also  erroneous  to  charge  the  jury  that  "the  leaving  of 
the  plaintiff's  horse  in  the  street  unhitched  was  an  act  of  negligence." 

:<>        *        4: 


RING  V.  CITY  OF  COHOES. 

(Court  of  Appeals  of  New  York,  1879.    77  N.  Y.  S3,  33  Am.  Rep.  574.) 

Earl,  j.7  *  *  *  'j^j^g  plaintiff  was  driving  a  blind  horse,  har- 
nessed to  a  sleigh,  upon  one  of  the  streets  of  the  city.  The  street  was 
thirty  feet  wide  between  the  curbs.  At  the  place  of  the  accident,  on 
the  west  side  of  the  street,  there  was  a  heap  of  ashes  about  twenty  feet 
long,  three  feet  high  and  extending  from  the  westerly  curb  into  the 
street  about  eleven  feet  leaving  a  roadway  between  the  heap  of  ashes 
and  the  easterly  curb  of  about  nineteen  feet.  At  the  same  time,  a  load- 
ed wagon  was  coming  southerly,  next  to  the  heap  of  ashes,  leaving  a 
roadway  between  that  and  the  easterly  curb  about  twelve  feet  wide. 
Plaintiff's  horse,  coming  from  the  south,  became  frightened  and  com- 
menced to  run ;  the  plaintiff  was  unable  to  restrain  him  or  to  guide 
or  direct  him  with  any  precision;  and  after  running  about  five  sec- 
onds, he  ran  so  near  to  a  hydrant,  on  the  easterly  side  of  the  street, 
opposite  the  wagon  going  south,  as  to  strike  the  nozzle  of  the  same 
with  the  cross-bar  of  the  sleigh,  and  plaintiff  was  thrown  against  the 
hydrant,  and  sustained  the  injury  complained  of  in  this  action.  The 
referee  was  authorized  to  find,  upon  the  evidence,  that  the  plaintiff 
was  free  from  fault;  and  that  the  city  was  in  fault  for  permitting 
the  street  to  be  encumbered  with  the  heap  of  ashes.  His  finding  upon 
defendant's  negligence  is  as  follows:  "The  defendant  was  guilty  of 
negligence  in  allowing  and  permitting  said  pile  of  ashes  and  cinders 
to  accumulate  and  remain  in  said  street,  and  in  erecting  and  maintain- 
ing said  hydrant  so  that  the  same  and  the  nozzle  thereof  projected  in- 
to the  portion  of  the  street  between  the  two  curbs,  and  that  such  negli- 
gence contributed  to  the  accident  and  injury  to  the  plaintiff  above  de-" 
scribed ;  that  by  reason  of  such  negligence  of  the  defendant  and  of 
such  accident  and  injury  to  the  plaintiff,  the  plaintiff  has  suffered  dam- 
age," etc. 

It  will  be  observed  that  the  referee  found  the  defendant  negligent, 
both  as  to  the  heap  of  ashes  and  the  hydrant,  and  that  such  negligence 

7  Part  of  the  opinion  is  omitted. 


Ch.  1)  DIRECT    AND    CONSEQUENTIAL    DAMAGES.  159 

contributed  to  the  accident;  and  he  finds  against  the  defendant  on  acr 
count  thereof.  He  based  his  judgment  upon  two  defects  in  the  street; 
and  how  much  he  was  influenced  in  reaching  his  conckision  by  either, 
we  cannot  tell.  He  certainly  erred  in  finding  that  the  defendant  was 
negligent  as  to  the  hydrant.  That  was  of  iron,  erected  by  the  city  in 
the  curb,  about  eight  inches  in  diameter  and  two  and  a  half  feet  high, 
with  a  nozzle  about  six  inches  from  the  top,  projecting  over  the  gut- 
ter about  four  inches.  The  gutter  was  at  least  a  foot  wide.  There  was 
no  evidence  that  this  hydrant  was  not  properly  constructed,  or  that  it 
was  not  properly  placed  where  it  was.  It  would  seem  that  it  could  be 
placed  in  no  position  where  it  would  be  less  inconvenient  than  in  the 
curb.  There  it  was,  as  much  as  possible,  out  of  the  way  of  pedestrians 
upon  the  sidewalk  and  vehicles  upon  the  street.  A  hydrant  answers  a 
useful  and  necessary  purpose,  and  it  is  required  to  be  placed  some- 
where in  the  street;  and  when  the  public  authorities  determine  to 
place  one  in  the  curb,  it  cannot  be  said  that  they  have  done  a  negligent 
act.  If  so,  it  would  be  negligent  to  permit  awning  or  hitching  posts 
to  be  placed,  or  trees  to  grow  on  the  edge  of  a  sidewalk,  extending 
partly,  as  they  frequently  do,  into  the  gutter.  It  is  true  that  in  a  city 
the  whole  roadway  must  generally  be  kept  suitable  for  travel.  But  the 
gutter  is  not  properly  for  travel ;  it  is  made  for  another  purpose.  The 
finding,  therefore,  that  the  city  was  negligent  as  to  this  hydrant,  was 
without  any  evidence  to  support  it. 

The  liability  of  the  city  must,  therefore,  rest  entirely  upon  the  ob- 
struction caused  by  the  heap  of  ashes.  If  it  carelessly  permitted  that  to 
remain  there  obstructing  to  some  extent  the  roadway,  it  would  be  re- 
sponsible for  any  accidents  caused  by  it,  but  only  for  such  accidents 
as  would  not  have  occurred  but  for  such  obstruction.  We  cannot  say, 
upon  the  evidence,  that  that  obstruction  caused  the  accident;  and  the 
referee  has  not  found  that  it  did.  He  found  that  that  and  the  other  ob- 
struction, as  to  which  the  city  was  not  in  fault,  did.  When  several 
proximate  causes  contribute  to  an  accident,  and  each  is  an  ef^cient 
cause,  without  the  operation  of  which  the  accident  would  not  have 
happened,  it  may  be  attributed  to  all  or  any  of  the  causes ;  but  it  can- 
not be  attributed  to  a  cause,  unless  without  its  operation  the  accident 
would  not  have  happened,  i  We  cannot  say,  from  the  evidence  or  the 
findings  of  the  referee,  that  the  heap  of  ashes  was  the  cause  of  the  ac- 
cident, without  which  it  would  not  have  happened. 

The  referee  erred  in  finding  that  the  city  was  negligent  as  to  the 
hydrant;  and  we  cannot  say  that  this  error  was  not  harmful  to  the 
defendant. 

The  judgment  must,  therefore,  be  reversed  and  a  new  trial  granted, 
costs  to  abide  event.    All  concur. 

Judgment  reversed. 


160  COMPENSATORY  DAMAGES.  (Part   5 


WESTERN  RY.  OF  ALABAMA  v.  MUTCH. 

(Supreme  Court  of  Alabama,  1S92.     97  Ala.  194,  11  South.  894,  21  L.  R,  A. 
316,  38  Am.  St.  Rep.  179.) 

Stone,  C.  J.®  The  plaintiff,  George  Mutch,  was  a  resident  of  Op- 
ehka.  His  son,  James  Mutch,  was  9y^  years  old,  well  grown  and  de- 
veloped for  his  age,  and,  in  intelligence  and  brightness,  was  above  the 
average  of  boys  of  his  age.  He  went  at  large  without  being  attended 
by  a  nurse  or  protector,  and  was  attending  school.  The  Western  Rail- 
way of  Alabama  runs  through  Opelika,  and  has  a  station  and  depot 
in  that  city  or  town.  There  was  an  ordinance  of  force  in  Opelika 
which  made  it  unlawful  to  run  a  train  of  cars  within  the  corporate 
limits  at  a  higher  rate  of  speed  than  four  miles  an  hour,  and  imposing 
a  penalty  for  its  violation.  A  freight  train  of  the  railroad  was  coming 
into  Opelika  on  an  afternoon  in  March,  1889.  It  had  box  cars,  and  at- 
tached to  the  side  of  one  of  them  was  a  ladder,  placed  there  to  enable 
brakemen  to  reach  the  top  of  the  car.  The  little  boy,  James,  having 
placed  himself  at  the  side  of  the  track,  attempted  to  seize  the  ladder 
as  it  passed  him,  that  he  might  climb  up  on  it,  and  thus  enjoy  a  ride. 
He  did  succeed  in  catching  a  round  of  the  ladder,  but,  in  attempting 
to  ascend,  he  missed  his  footing,  fell  under  the  train,  and  was  so  in- 
jured and  crushed  that  he  died  of  the  wounds.     *     *     * 

The  present  suit  was  brought  against  the  railroad,  and  seeks  to  re- 
cover damages  from  it  for  this  alleged  negligent  killing  of  plaintiff's 
intestate.  The  negligence  charged  (and  there  is  no  other  pretended, 
or  attempted  to  be  shown)  is  that  the  train  was  being  moved  at  a  great- 
er rate  of  speed  than  four  miles  an  hour.  *  *  *  Assuming  that 
the  speed  of  the  train  was  in  excess  of  four  miles  an  hour,  was  there 
a  causal  connection  between  such  breach  of  duty  on  the  part  of  the 
railroad  company  and  the  injury  done  to  plaintiff's  intestate? 

Persons  who  perpetrate  torts  are,  as  a  rule,  responsible,  and  only 
responsible,  for  the  proximate  consequences  of  the  wrongs  they  com- 
mit, iln  other  words,  unless  the  tort  be  the  proximate  cause  of  the 
injury  complained  of,  there  is  no  legal  accountability,  In  that  able 
and  valuable  work,  16  Am.  &  Eng.  Enc.  Law,  436,  is  this  language: 
"A  'proximate  cause'  may  be  defined  as  that  cause  which  in  natural 
and  continuous  sequence,  unbroken  by  any  efficient  intervening  cause, 
producing  the  result  complained  of,  and  without  which  that  result 
would  not  have  occurred;  and  it  is  laid  down  in  many  cases,  and  by 
leading  text  writers,  that,  in  order  to  warrant  a  finding  that  negli- 
gence, or  an  act  not  amounting  to  wanton  wrong,  is  the  proximate 
cause  of  an  injury,  it  must  appear  that  the  injury  was  the  natural  and 
probable  consequence  of  the  negligence  or  wrongful  act,  and  that  it 
was  such  as  might  or  ought  to  have  been  foreseen,  in  the  light  of  the 
attending  circumstances."    On  page  431  of  the  same  volume  it  is  said: 

»  Part  of  the  opinion  is  omitted. 


Ch.  1)  DIRECT    AND    CONSEQUENTIAL    DAMAGES.  IGl 

"To  constitute  actionable  negligence,  there  must  be  not  only  a  causal 
connection  between  the  negligence  complained  of  and  the  injury  suf- 
fered, but  the  connection  must  be  by  a  natural  and  unbroken  sequence, 
without  intervening  efficient  causes;  so  that,  but  for  the  negligence 
of  the  defendant,  the  injury  would  not  have  occurred.  It  must  not  on- 
ly be  a  cause,  but  it  must  be  the  proximate — that  is,  the  direct  and  im- 
mediate, efficient — cause  of  the  injury."  That  philosophic  law  writer, 
Dr  Wharton  (Law  of  Negligence,  §  75),  expresses  the  principle  as 
follows:  "If  the  consequence  flows  from  any  particular  negligence, 
according  to  ordinary  natural  sequence,  without  the  intervention  of 
any  human  agency,  then  such  sequence,  whether  foreseen  as  probable, 
or  unforeseen,  is  imputable  to  the  negligence."  Quoting  from  Chief 
Baron  Pollock  with  apparent  approval,  he  (in  section  78)  says:  "I 
entertain  considerable  doubt  whether  a  person  who  has  been  guilty  of  -/ A-jT^ 
negligence  is  responsible  for  all  the  consequences  which  may  under  l^^^^^ 
any  circumstances  arise,  and  in  respect  of  mischief  which  could  by  no 
possibility  have  been  foreseen,  and  which  no  reasonable  person  could 
have  anticipated.  I  am  inclined  to  consider  the  rule  of  law  to  be  this : 
That  a  person  is  expected  to  anticipate  and  guard  against  all  reasona- 
ble consequences,  but  that  he  is  not  by  the  law  of  England  expected  to 
anticipate  and  guard  against  that  which  no  reasonable  man  would 
expect  to  occur."  In  the  same  section  he  quotes  approvingly  the 
following  language  from  Lord  Campbell:  "If  the  wrong  and  the 
legal  damage  are  not  known  by  common  experience  to  be  usually  in 
sequence,  and  the  damage  does  not,  according  to  the  ordinary  course 
of  events,  follow  from  the  wrong,  the  wrong  and  the  damage  are  not 
sufficiently  conjoined  or  concatenated,  as  cause  and  efifect,  to  support 
an  action."  In  Shearman  &  Redfield's  Law  of  Negligence  (section 
26)  the  principle  is  thus  stated:  "The  proximate  cause  of  an  event 
must  be  understood  to  be  that  which,  in  a  natural  and  continuous  se- 
quence, unbroken  by  any  new  cause,  produces  that  event,  and  without 
which  that  event  would  not  have  occurred."     *     *     * 

Lynch  v.  Nurdin,  1  Q.  B.  (N.  S.)  29,  41  E.  C.  L.  422,  is  the  strong- 
est of  the  cases  relied  on  in  support  of  the  present  action.  The  in- 
jury in  that  case  occurred  in  a  city.  The  headnote  contains  a  summa- 
tion of  the  facts  as  follows:  "Defendant  (a  cartman)  negligently 
left  his  horse  and  cart  unattended  in  the  street.  Plaintiff,  a  child  sev- 
en years  old,  got  upon  the  cart  in  play.  Another  child  incautiously 
led  the  horse  on,  and  plaintiff  was  thereby  thrown  down,  and  hurt." 
It  was  held  that  the  action  was  maintainable  for  the  recovery  of  dam- 
ages, "and  that  it  was  properly  left  to  the  jury  whether  defendant's 
conduct  was  negligent,  and  the  negligence  caused  the  injury."  In 
delivering  his  opinion,  Lord  Denman  used  the  following  language: 
"If  I  am  guilty  of  negligence  in  leaving  anything  dangerous  in  a  place 
where  I  know  it  to  be  extremely  probable  that  some  other  person  will 
unjustifiably  set  it  in  motion,  to  the  injury  of  a  third,  and  if  that  in- 
Gilb.Dam.— 11 


1G2  COMPENSATORY   DAMAGES.  (Part    5 

jury  should  be  so  brought  about,  I  presume  that  the  sufferer  might 
have  redress  by  action  against  both  or  either  of  the  two,  but  unques- 
tionably against  the  first.  *  *  *  Can  the  plaintiff,  then,  consistent- 
ly with  the  authorities,  maintain  his  action,  having  been  at  least  equal- 
ly in  fault  ?  The  answer  is  that,  supposing  that  fact  ascertained  by  the 
jury,  but  to  this  extent:  that  he  merely  indulged  the  natural  instinct 
of  a  child  in  amusing  himself  with  the  empty  cart  and  deserted  horse, 
then  we  think  that  the  defendant  cannot  be  permitted  to  avail  himself 
of  that  fact.  The  most  blamable  carelessness  of  his  servant  having 
tempted  the  child,  he  ought  not  to  reproach  the  child  with  yielding  to 
that  temptation."  Reading  the  case  of  Lynch  v.  Nurdin  in  the  light 
shed  upon  it  by  Lord  Denman's  reasoning,  no  one  can  fail  to  note  the 
marked  difference  between  that  case  and  the  one  we  have  in  hand.  The 
argument  by  which  the  learned  Lord  Chief  Justice  supported  the  judg- 
ment he  announced  has  no  application  to  the  present  one.  That  case 
was  manifestly  decided  on  the  well-recognized  principle  that  if  one 
leave  dangerous  machinery,  or  any  other  thing  of  similar  nature,  un- 
attended, and  in  an  exposed  place,  and  another  be  injured  thereby,  an 
action  on  the  case  may  be  maintained  for  such  injury,  unless  plaintiff 
was  guilty  of  contributory  negligence.  *  *  *  Infants  of  tender 
years,  and  wanting  in  discretion,  are  not  amenable  to  the  disabling  ef- 
fects of  contributory  negligence.  In  the  opinion  of  the  court  in  the 
case  of  Lynch  v.  Nurdin  the  causal  connection  between  the  negligence 
and  the  injury  was  so  direct  and  patent  that  the  driver,  exercising  or- 
dinary care  and  prudence,  should  have  anticipated  and  guarded  against 
it.  The  implication  from  Lord  Denman's  language  is  very  strong  that 
he  regarded  the  cartman's  conduct  as  grossly  negligent.  Contributory 
negligence  is  no.  defense  to  injuries  which  result  from  gross  negli- 
gence. But  the  principle  declared  in  Lynch  v.  Nurdin  was,  if  not  ma- 
terially shaken,  at  least  shown  to  be  inapplicable  to  a  case  like  the 
present  one,  in  the  two  later  English  cases  of  Hughes  v.  Macfie,  2 
Hurl.  &  C.  744,  and  Mangan  v.  Atterton,  L.  R.  1  Exch.  239.  *  *  * 
The  ordinance  of  Opelika,  restricting  the  speed  of  trains  within  the 
corporate  limits  to  four  miles  an  hour,  had  one  purpose — one  policy. 
Opelika  is  a  town  probably  of  four  or  more  thousand  inhabitants.  The 
railroad  antedated  the  town,  and  caused  its  location  there.  It  runs 
centrally  through  the  business  portions  of  the  place.  In  such  condi- 
tions, men  pursuing  business  avocations,  as  well  as  idlers  and  curiosity 
seekers,  will  congregate  about  the  depot  and  track  of  the  railroad,  and 
will  be  constantly  crossing,  if  not  standing  on,  the  track.  They  do 
both.  Knowing  this  habit  of  men,  most  towns  located  on  railroads 
have  ordinances  requiring  trains  passing  through  them  to  move  at  a 
low  rate  of  speed.  Why?  Not  because  they  apprehend  that  reckless 
persons  will  attempt  to  board  the  train  while  in  motion.  The  wildest 
conjecture  would  scarcely  take  in  an  adventure  so  fraught  with  peril. 
The  policy  was  to  enable  persons  who  might  be  standing  on  the  track, 


Ch.  1)  DIRECT    AND    CONSEQUENTIAL    DAMAGES.  163 

or  whose  business  pursuits  required  them  to  cross  it,  to  get  off  the 
track,  and  thus  escape  the  danger  of  a  colHsion.  The  ordinance  had  no 
other  aim. 

We  hold  as  matter  of  law  that  there  was  no  proof  whatever  in  this 
case  tending  to  show  a  causal  connection  between  the  negligence  charg- 
ed and  the  injury  suffered.     *     *     *  » 


SCHEFFER  v.  RAILROAD   CO. 

(Supreme  Court  of  Uuitecl  States,  1881.     105  U.  S.  240,  2G  L.  Ed.  1070.) 

Charles  Scheffer  was  injured  in  a  collision  on  defendant's  railroad 
on  December  7,  1874,  the  accident  being  due  to  the  carelessness  of  the 
officers  of  the  company.  His  head,  face,  neck,  back,  and  spine  were 
injured,  and  nervous  prostration  followed.  After  continued  sickness 
and  suffering,  Scheffer  committed  suicide  on  August  8,  1875.  This 
action  was  brought  by  his  executors,  asking  damages  for  his  death. 
A  demurrer  to  the  declaration  was  sustained,  and  plaintiffs  appealed. 

Miller,  J.^°  [After  commenting  upon  the  cases  of  Milwaukee  & 
St.  Paul  R.  R.  Co.  V.  Kellogg,  94  U.  S.  469,  24  L.  Ed.  256,  and  Mc- 
Donald V.  Snelling,  14  Allen  (Mass.)  290,  92  Am.  Dec.  768:]  Bring- 
ing the  case  before  us  to  the  test  of  these  principles,  it  presents  no  dif- 
ficulty. The  proximate  cause  of  the  death  of  Scheffer  was  his  own  act 
of  self-destruction.  It  was  within  the  rule  in  both  these  cases  a  new 
cause,  and  a  sufficient  cause  of  death. 

The  argument  is  not  sound  which  seeks  to  trace  this  immediate  cause 
of  the  death  through  the  previous  stages  of  mental  aberration,  phys- 
ical suffering,  and  eight  months'  disease  and  medical  treatment  to  the 
original  accident  on  the  railroad.  Such  a  course  of  possible  or  even 
logical  argument  would  lead  back  to  that  "great  first  cause  least  under- 
stood," in  which  the  train  of  all  causation  ends. 

The  suicide  of  Scheft'er  was  not  a  result  naturally  and  reasonably  to 
be  expected  from  the  injury  received  on  the  train.  It  was  not  the  nat- 
ural and  probable  consequence,  and  could  not  have  been  foreseen  in  the 
light  of  the  circumstances  attending  the  negligence  of  the  officers  in 
charge  of  the  train. 

His  insanity,  as  a  cause  of  his  final  destruction,  was  as  little  the  nat- 
ural or  probable  result  of  the  negligence  of  the  railway  officials,  as  his 

9  See  Firth  v.  Bowling  Iron  Co.,  3  C.  P.  Div.  254  (1878),  whore  defendants 
were  held  liable  for  the  loss  of  plaintiff's  cow.  which  had  died  from  eating 
portions  of  defendant's  iron  fence,  which  had  decayed  and  fallen  and  becom" 
hidden  in  the  grass  on  plaintiff's  land. 

S<H'  Lee  V.  City  of  Burlington.  1L3  Iowa,  356.  85  N.  W.  618,  SG  Am.  St  Rep. 
370  (1001),  where  It  was  held  that  the  death  of  a  horse  from  fridit  at  a  steam 
roller  was  not  the  proximate  result  of  the  negligence  of  the^  defendant  in 
operating  the  roller. 

10  Part  of  the  opinion  Is  omitted,  and  the  statement  of  facts  is  rewritten. 


164  COMPENSATORY  DAMAGES.  (Part   5 

suicide,  and  each  of  these  are  casual  or  unexpected  causes,  interven- 
ing between  the  act  which  injured  him,  and  his  death. 
Judgment  affinned. 


VICARS  V.  WILCOCKS. 

(Court  of  King's  Bench,  1806.    8  East,  1.) 

Action  for  slander,  in  that  the  defendant  had  falsely  asserted  that 
the  plaintiff  had  cut  certain  flocking  cord,  by  reason  of  which  one  J. 
O.  had  dismissed  plaintiff  from  his  service,  and  one  R.  P.  had  refused 
to  receive  plaintiff  into  his  service. 

Lord  EllEnborough,  C.  J.,  said,  that  the  special  damage  must  be 
the  legal  and  natural  consequence  of  the  words  spoken,  otherwise  it 
did  not  sustain  the  declaration :  and  here  it  was  an  illegal  consequence ; 
a  mere  wrongful  act  of  the  master;  for  which  the  defendant  was  no 
more  answerable,  than  if,  in  consequence  of  the  words,  other  persons 
had  afterwards  assembled  and  seized  the  plaintiff,  and  thrown  him  into 
a  horsepond  by  way  of  punishment  for  his  supposed  transgression. 
And  his  Lordship  asked  whether  any  case  could  be  mentioned  of  an 
action  of  this  sort  sustained  by  proof  only  of  an  injury  sustained  by  the 
tortious  act  of  a  third  person.  Upon  the  second  ground,  non  liquet 
that  the  refusal  by  R.  P.  to  employ  the  plaintiff  was  in  consequence  of 
the  words  spoken,  as  it  is  alleged  to  be:  there  was  at  least  a  concurrent 
cause,  the  act  of  his  former  master  in  refusing  to  continue  him  in  his 
employ;  which  was  more  likely  to  weigh  with  R.  P.  than  the  mere 
words  themselves  of  the  defendant. 

Rule  refused.^^ 


GEORGIA  v.  I^EPFORD. 

(Supreme  Court  of  Iowa,  1876.     45  Iowa,  48.) 

The  first  count  of  the  petition  alleges  no  special  damages.  The  sec- 
ond count  alleges  that  plaintiff  was,  at  the  time  of  speaking  the  words 
charged,  a  married  man;  that  said  words  were  spoken  by  defendant 
maliciously  to  slander  plaintiff,  and  to  cause  his  wife  to  leave  him; 
that  in  consequence  of  so  speaking  said  words  plaintiff's  wife  soon 
thereafter  did  abandon  him,  refused  to  live  with  him,  and  commenced 
an  action  of  divorce,  whereby  this  plaintiff  was  to  great  expense  in 
defending  the  same,  all  to  his  damage  in  the  sum  of  $5,000.    There 

11  See,  also,  accord:  Moore  v.  Meagher,  1  Taunt.  39  (1807);  Ashley  v.  Har- 
rison, 1  Esp.  48  (1793) ;  Ward  v.  Weelis,  7  Bing.  211  (1830) ;  Knight  v.  Gibbs,  1 
Adol.  &  E.  43  (1843).  But  see  Green  v.  Button,  2  C,  M.  &  R.  707  (1835),  and 
Keudillon  v.  Maltby,  1  Car.  &  M.  402  (1842),  where  doubt  is  expressed  on  the 
principal  case. 


Ch.  1)  DIRECT   AND    CONSEQUENTIAL   DAMAGES.  1^5 

was  a  jury  trial,  and  a  verdict  and  judgment  for  plaintiff  for  $500. 
Defendant  appeals. 

Day,  J.^^  On  the  trial  of  the  cause  the  plaintiff  introduced  evidence 
tending-  to  prove  the  speaking  by  defendant  of  the  words  charged  in 
the  petition,  and  that  in  consequence  thereof  the  wife  of  plaintiff'  aban- 
doned him,  and  thereafter  began  an  action  for  divorce  against  him  on 
the  ground  of  inhuman  treatment. 

The  plaintiff  was  sworn  in  his  own  behalf,  and  was  asked  the  fol- 
lowing question:  "State  wdiat  expense,  if  any,  you  were  to  in  looking- 
after  and  defending  the  divorce  suit  brought  against  you  by  your 
wife." 

The  defendant  objected  to  this  question  on  the  ground  that  the  dam- 
age sought  to  be  proved  was  too  remote.  The  objection  was  over- 
ruled, and  plaintiff"  answered  that  he  spent  30  days'  time,  worth  $2.50 
per  day,  and  paid  his  attorneys  $25.  The  admission  of  this  testimony 
is  assigned  as  error. 

The  testimony,  we  think,  was  improperly  admitted.  Damage  to  be 
recoverable  must  be  the  proximate  consequence  of  the  act  complained 
of;  it  must  be  the  consequence  that  follows  the  act,  and  not  the  sec- 
ondary result  from  the  first  consequence,  either  alone  or  in  combina- 
tion with  other  circumstances.  Dubuque  Wood  &  Coal  Association  v. 
City  of  Dubuque,  30  Iowa,  176. 

An  action  for  divorce  on  the  ground  of  inhuman  treatment  is  not 
the  proximate  consequence  of  a  charge  of  larceny  or  adultery. 

It  is  claimed  that  the  court  erred  in  charging  that  the  jury  might 
give  special  damages  for  the  wife's  desertion,  if  caused  by  the  speak- 
ing of  the  slanderous  words  alleged. 

General  damages  are  such  as  the  law  implies  or  presumes  to  have 
accrued  from  the  wrong  complained  of.  Special  damages  are  such 
as  really  took  place,  but  are  not  implied  by  law ;  and  are  either  super- 
added to  general  damages,  arising  from  an  act  injurious  in  itself,  as 
where  some  particular  loss  arises  from  the  uttering  of  slanderous 
words  actionable  in  themselves  or  are  such  as  arise  from  an  act  indif- 
ferent and  not  actionable  in  itself,  but  injurious  only  in  its  consequen- 
ces, as  where  words  become  actionable  only  by  reason  of  special  dam- 
age ensuing.  Chitty  on  Pleading,  vol.  1,  p.  458,  quoted  in  Sedgwick 
on  Damages  (6th  Ed.)  p.  732.  But  damages,  both  general  and  special, 
must  be  the  natural  and  proximate,  though  not  the  necessary,  conse- 
quence of  the  act  complained  of.  Sedgwick  on  Measure  of  Damages, 
p.  G6]  Beach  v.  Ranney,  2  Hill  (N.  Y.)  309,  314.  A  man  is  not  re- 
sponsible for  all  the  remote  and  possible  consequences  which  may  re- 
sult from  his  act,  although  he  may  be  a  wrongdoer.  Beach  v.  Ranney, 
supra. 

Now,  whilst  desertion  by  the  wife  of  a  husband  against  w^hom  simply 
a  slanderous  charge  of  larceny  and  adultery  had  been  preferred,  might, 

18  I'art  of  the  opinion  is  omitted. 


166  COMPENSATORY   DAMAGES.  (Part    5 

in  exceptional  cases,  follow,  as  a  consequence  of  the  charge,  yet  we 
think  that  such  a  result  is  not  the  natural  and  proximate  consequence. 
A  rule  of  law  must  not  be  adduced  from  what  might  follow  in  excep- 
tional cases,  and  with  peculiar  temperaments,  under  particular  circum- 
stances, but  from  what  is  likely  to  follow  under  ordinary  circumstan- 
ces. A  very  suspicious  or  a  very  credulous  woman  might  desert  her 
husband  upon  the  first  slanderous  report  against  him.  But  the  ques- 
tion is  not  what  a  very  credulous  or  a  very  suspicious  woman  might  do, 
but  what  would  an  ordinary  woman  naturally  do?  Guided  by  these 
principles,  we  have  no  hesitancy  in  holding  that,  whilst  in  this  par- 
ticular case  the  plaintiff's  wife  may  have  abandoned  him  because  of 
defendant's  slander,  yet  such  desertion  was  not  the  natural  and  proxi- 
mate consequence  of  the  slander. 

The  petition  alleges  that  the  defendant  spoke  the  slanderous  words 
for  the  purpose  of  causing  plaintift"'s  wife  to  leave  him.  If  this  had 
been  proved,  and  the  instruction  had  been  based  upon  the  existence  of 
such  proof,  it  would  not,  probably,  have  been  erroneous.  For  a  party 
ought  not  to  be  permitted  to  complain  that  he  has  been  held  responsi- 
ble for  results  which  he  sought  to  accomplish.  But  there  does  not  seem 
to  have  been  any  proof  that  the  words  were  spoken  as  an  element  nec- 
essary to  recovery.     *     *     *  ^' 


LIMING  V.   ILLINOIS   CENT.  R.   CO. 

(Supreme  Court  of  Iowa,  1890.    81  Iowa,  246,  47  N.  W.  66.) 

On  November  3,  1888,  William  Ortman  owned,  and  with  plaintiff 
and  his  family  occupied,  a  farm  on  which  was  a  barn  containing  some 
horses  which  belonged  to  Ortman.  An  engine  of  the  defendant  set 
fire  to  grass  on  its  right  of  way,  which  by  reason  of  a  high  wind  was 
swept  toward  this  barn.  The  plaintiff'  and  Ortman,  being  unable  to 
check  the  spread  of  the  fire,  ran  into  the  barn  to  unfasten  the  horses, 
thinking  there  was  ample  time.  But  the  strong  wind  drove  the  fire 
suddenly  to  the  barn,  and  plaintiff,  in  order  to  get  out,  was  compelled 
to  pass  through  the  fire,  and  was  badly  burned.  A  demurrer  to  the 
petition  was  sustained. 

Robinson,  J.^*  *  *  *  'j^l^g  question  presented  for  our  deter- 
mination is  not  free  from  difficulty.  Defendant  is  not  liable  unless 
its  wrongful  act  was  the  proximate  cause  of  the  damages  in  suit. 
*  *  *  In  this  case  the  plaintiff  did  not  receive  the  injuries  of  which 
he  complains  in  any  attempt  to  protect  human  life,  nor  in  trying  to 
save  his  own  property.     So  far  as  we  are  advised  by  the  record,  he 

18  In  Lynch  v.  Knight,  9  H.  L.  Cas.  577  (1861),  herein  in  part,  post,  p.  446, 
it  was  held,  Lord  Wensleydale  dubitante,  that  loss  of  husband's  consortium 
was  not  the  proximate  result  of  the  speaking  of  slanderous  words  imputing  to 
the  plaintiff  immorality  prior  to  her  marriage.  And  see,  on  a  similar  point, 
Allsop  V.  Allsop,  post,  p.  447. 

1*  Part  of  the  opinion  is  omitted,  and  the  statement  of  facts  is  rewritten. 


Ch.  1)  DIRECT    AND    CONSEQUENTIAL    DAMAGES.  167 

was  under  no  legal  obligation  to  protect  the  property  of  his  neighbor; 
yet  his  attempt  to  do  so  was  entirely  lawful,  and  was  most  praise- 
worthy. If  he  had  failed  to  make  a  reasonable  effort  to  save  it,  he 
would  have  merited  the  censure  and  contempt  of  his  neighbors;  and 
this  would  have  been  so  notwithstanding  the  fact  that  defendant  may 
have  been  liable  for  all  loss  which  could  occur,  and  that  what  he  accom- 
plished would  inure  to  its  benefit.  It  is  the  duty  of  every  one,  accord- 
ing to  the  requirements  of  an  enlightened  and  just  public  sentiment, 
to  use  reasonable  efforts  to  preserve  the  property  of  others  from  threat- 
ened destruction;  and,  as  is  well  known,  it  is  a  duty  which  people  gen- 
erally are  quick  to  discharge.  Defendant  could  have  foretold,  with 
almost  absolute  certainty,  when  it  set  the  fire  in  question,  that  plaintiff, 
being  near,  would  use  every  reasonable  means  in  attempting  to  save 
Ortman's  horses  from  the  flames,  and  tiiere  was  nothing  surprising  or 
unusual  in  the  attempt  he  made.  Under  the  circumstances  of  the  case, 
it  was  the  natural  and  probable  result  of  the  wrong  of  defendant.  A 
person  would  not  be  justified  in  exposing  himself  to  as  great  danger 
in  saving  property  as  he  would  in  saving  human  life,  and  whether  the 
person  injured  acted  with  reasonable  prudence  would,  in  most  cases, 
be  a  question  of  fact  depending  upon  the  circumstances  under  which 
the  act  was  done.    *     *     * 


HOEY  V.  FELTON. 

(Court  of  Common  Pleas,  ISGl.     11  C.  B.  [N.  S.]  142.) 

Erle,  C.  J.^**  *  *  *  In  tiiis  case,  Serjeant  Thomas  moved  for 
a  rule  nisi  for  a  new  trial,  on  the  ground  of  the  improper  rejection  of 
evidence.  The  plaintiff  in  the  count  for  false  imprisonment  shewed 
that  the  defendant  imprisoned  him  about  half  past  one  o'clock,  and  de- 
tained him  till  after  two  o'clock;  and  for  special  damage  he  tendered 
evidence  to  shew  that  he  would  have  been  taken  into  the  employ  of  a 
cigar  manufacturer  if  he  had  appeared  at  two  o'clock  at  the  factory; 
but,  being  unwell  in  consequence  of  the  imprisonment,  he  had  returned 
to  his  home,  and,  on  applying  at  the  factory  on  the  following  morning 
found  that  the  place  was  filled  up.  The  judge  decided  that  this  damage 
was  too  remote,  and  rejected  the  evidence. 

My  Brother  Thomas  contended  that  it  was  not  too  remote ;  and  he 
referred  to  some  cases ;  as,  where  a  minister  was  allowed  to  shew  that 
his  congregation  had  diminished  by  reason  of  the  slander  of  the  de- 
fendant (Hartley  v.  Hemming,  8  T.  R.  1) ;  and  wdiere  the  captain  of  a 
passenger  ship  shewed  that  he  had  lost  passengers  by  the  defendant's 
description  of  his  ship  (Ingram  v.  Lawson,  6  N.  C.  212,  8  Scott,  471, 
and  other  cases). 

In  these  cases,  the  damage  was  the  proximate  result  of  the  defend- 
ant's wrong.     In  the  present  case,  we  think  it  was  too  remote.    The 

»6  Tait  of  the  opiuiou  is  ouutted. 


168  COMPENSATORY  DAMAGES.  (Part   5 

damage  does  not  immediately  and  according  to  the  common  course  of 
events,  follow  from  the  defendant's  wrong;  they  are  not  known  by 
common  experience  to  be  usually  in  sequence.  The  wrong  would  not 
have  been  followed  by  the  damage,  if  some  facts  had  not  intervened 
for  which  the  defendant  was  not  responsible.  Thus,  there  was  the 
act  of  the  plaintiff,  who  returned  home  instead  of  going  to  the  factory 
and  explaining;  and,  although  it  was  said  he  was  unwell  by  reason 
of  the  imprisonment,  it  was  not  suggested  that  he  was  so  unwell  as 
to  be  unable  to  go.  There  was  also  the  act  of  the  intended  employer, 
changing  his  purpose  in  respect  of  the  plaintiff,  and  making  an  en- 
gagement with  another  person.     *     *     *  is 


LAWRENCE  v.  HAGERMAN. 

(Supreme  Court  of  Illinois,  1870.    56  111.  68,  8  Am.  Rep.  674.) 
See  post,  p.  524,  for  a  report  of  the  case. 


SHARP    V.    POWELL. 

(Court  of  Common  Pleas,  1872.     L.  R.  7  0.  P.  253.) 

Defendant's  servant  washed  a  van  in  the  public  street  and  allowed 
the  waste  water  to  run  down  the  gutter  toward  a  grating  leading  to  the 
sewer  about  25  yards  off.  The  grating  was  obstructed  by  ice,  and  the 
water  flowed  over  a  portion  of  the  street,  which  was  ill-paved  and  un- 
even, and  then  froze.  There  was  no  evidence  that  the  defendant  knew 
of  the  grating  being  obstructed.  The  plaintiff's  horse,  while  being  led 
past  the  spot,  slipped  on  the  ice  and  broke  its  leg.^^ 

Grove,  J.  I  am  entirely  of  the  same  opinion.  I  think  the  act  of 
the  defendant  was  not  the  ordinary  or  proximate  cause  of  the 
damage  to  the  plaintiff's  horse,  or  within  the  ordinary  consequences 
which  the  defendant  may  be  presumed  to  have  contemplated,  or  for 
which  he  is  responsible.  The  expression,  the  "natural"  consequence, 
which  has  been  used  in  so  many  cases,  and  which  I  myself  have  no 
doubt  often  used,  by  no  means  conveys  to  the  mind  an  adequate  no- 
tion of  what  is  meant;   "probable"  would  perhaps  be  a  better  expres- 

16  See,  also,  Richmond  &  D.  R.  Co.  v.  Allison,  post,  p.  274. 

The  cases  are  conflicting  and  somewhat  indefinite  as  to  whether  this  result 
in  this  type  of  cases  should  be  reached  because  of  remoteness  or  of  uncer- 
tainty. See  Brown  v.  Cummings,  7  Allen  (Mass.)  507  (1863),  and  R.  &  D. 
R.  R.  Co.  V.  Elliott,  149  U.  S.  206,  13  Sup.  Ct.  837,  37  L.  Ed.  728  (1893). 

Axuony  other  interesting  cases,  involving  the  intervening  act  of  a  respon- 
sible agency,  are  Burton  v.  Pinkerton,  L.  R.  2  Exch.  340  (1867) ;  Guille  v.  Swan, 
19  Johns.  (N.  Y.)  381,  10  Am.  Dec.  234  (1822) ;  Laidlaw  v.  Sage,  158  N.  Y.  73, 
52  N.  E.  679,  44  L.  R.  A.  216  (1899) ;  State  v.  Ward,  9  Heisk.  (Tenn.)  100  (1871) ; 
Schmidt  v.  Mitchell,  84  111.  195.  25  Am.  Rep.  446  (1870). 

17  The  statement  of  facts  is  rewritten. 


x^ 


Ch.  1)  DIRECT    AND    CONSEQUENTIAL   DAMAGES.  169 

sion.  If  on  the  present  occasion  the  water  had  been  allowed  to  accu- 
mulate round  the  spot  where  the  washing  of  the  van  took  place,  and 
had  there  frozen  obviously  within  the  sight  of  the  defendant,  and  the 
plaintiff's  horse  had  fallen  there,  I  should  have  been  inclined  to  think 
that  the  defendant  would  have  been  responsible  for  the  consequences 
which  had  resulted.  But  there  must  be  some  limit  to  the  liability  of 
a  man  for  the  consequences  of  a  wrongful  act ;  and  it  does  not  by  any 
means  follow  that,  though  the  act  of  allowing  the  water  to  flow  over 
the  street  in  the  first  instance  was  wrongful,  the  defendant  is  liable  for 
a  stoppage  occurring  after  the  water  had  got  back  into  its  proper  and 
accustomed  channel.  The  defendant  was  not  bound  to  go  down  the 
street  and  see  whether  or  not  any  obstacle  existed  at  the  drain.  I  can- 
not therefore  see  that  the  damage  to  the  plaintiff's  horse  was  the  prox- 
imate or  the  probable  result  of  the  washing  of  the  defendant's  van  in 
the  street  rather  than  in  his  own  stable  or  coach-house.  I  think  Mr. 
Lanyon  put  the  case  upon  the  true  ground.  The  damage  complained 
of  was  not  proximately  caused  by  the  original  wrongful  act  of  the  de- 
fendant.^* 


CHAMBERLAIN  v.  CITY  OF  OSHKOSH. 

(Supreme  Court  of  Wisconsin,  1S93.    84  Wis.  289,  54  N.  W.  618, 
19  L.  R.  A.  513,  36  Am.  St.  Rep.  928.) 

The  complaint  in  substance  alleged  that  the  defendant  had  negli- 
gently permitted  a  large  hole  to  exist  in  the  usual  course  of  travel  over 
a  stone  crossing  and  sidewalk,  at  the  intersection  of  Merritt  and  Ford 
streets,  in  the  city  of  Oshkosh ;  that  such  hole  had  become  filled  with 
water,  which  had  become  frozen  over  with  a  large  surface  of  smooth 
ice ;  and  that  no  precaution  had  been  taken  to  guard  passers-by  from 
falling.  The  plaintiff  asserted  that  she  had,  in  consequence,  fallen  and 
had  sustained  great  bodily  injuries.  The  defendant  appeals  from  a 
judgment  for  the  plaintiff. 

Orton,  J.^^  *  *  *  j^  ^^jjj  ^jg  observed  that  the  complaint  does 
not  charge  that  the  plaintiff's  injury  was  caused  by  a  hole  or  depres- 
sion in  the  cross  walk,  but  that  it  was  caused  wholly  by  the  smooth 
surface  of  the  ice  at  that  place,  and  such  was  the  evidence.  The  plain- 
tiff slipped  and  fell  on  the  smooth  surface  of  the  ice.  The  ice  was  the 
proximate  cause  of  the  injury.  The  depression  in  the  walk  where  the 
ice  formed,  if  a  defect,  and  a  cause  of  the  injury  in  any  sense,  was  a 
remote,  and  not  the  proximate,  cause  of  the  injury.  But  at  this  time 
there  was  no  hole,  or  even  depression,  at  that  place.  It  was  filled  up 
by  the  ice.  It  is  too  plain  for  argument  that  tho  cause  of  the  plaintift"'s 
injury,  both  by  the  complaint  and  testimony,  was  the  smooth  surface 
of  the  ice  on  the  cross  walk.    The  special  verdict  is  careful  not  to  state 

18  Bovill  and  Keatiii?,  JJ.,  dolivored  concurring  opinions. 

18  Part  of  the  opinion  is  omitted,  and  tlie  statement  of  facts  Is  rewritten. 


170  COMPENSATORY   DAMAGES.  (Part    5 

the  defect  or  dangerous  condition.  It  will  be  observed,  also,  that  the 
negligence  of  the  city  consists  "in  failing  to  provide  a  safe  crossing  or 
passage  over  and  around  said  large  surface  of  smooth  ice,  and  allowed 
and  permitted  said  crossing  to  remain  in  such  insufficient,  unsafe,  and 
defective  condition  for  a  period  of  four  weeks,  and  failed  to  take  any 
precaution  to  prevent  or  warn  travelers  over  said  crossing  or  sidewalk 
from  walking  upon  and  over  said  surface  of  ice."  The  existence  and 
continuance  of  said  ice  for  four  weeks  was  the  presumptive  notice  to 
the  city  of  the  defect  complained  of.  The  plaintiff  does  not  complain 
of  being  injured  by  the  hole  or  depression,  but  by  the  "large  sur- 
face of  smooth  ice."  The  depression  was  the  cause  of  the  water  ac- 
cumulating there,  and  the  water,  combined  with  a  low  temperature, 
caused  the  ice  to  form  which  injured  the  plaintiff.  The  depression  was 
a  remote  cause  or  cause  of  causes.  The  proximate  or  direct  cause 
was  the  ice,  and  this  must  be  the  cause  of  action.  "Causa  proxima, 
non  remota,  spectatur."  The  proximate,  and  not  the  remote,  cause, 
must  be  considered.  The  cause  nearest  in  order  of  causation,  which 
is  adequate  to  produce  the  result,  is  the  direct  cause.  In  law,  on- 
ly the  direct  cause  is  considered.  These  are  familiar  maxims.  "The 
proximate  cause  is  the  cause  which  leads  to,  and  is  instrumental  in  pro- 
ducing, the  result."  3  Amer.  &  Eng.  Enc.  Law,  45;  State  v.  Rail- 
road Co.,  52  N.  H.  528. 

In  this  case  the  hole  or  depression  is  not  the  cause  of  the  injury  for 
which  an  action  may  be  brought.  It  is  too  remote.  There  is  a  direct 
cause  of  the  injury,  and  that  is  the  ice  on  which  she  slipped  down,  and 
that  is  the  only  one  which  can  be  considered.  The  defect  in  the  street 
or  walk  is  the  ice,  and  the  negligence  of  the  city  consists  in  allowing  it 
to  remain.  This  was  dangerous  to  the  traveling  public,  and  the  cause 
of  the  plaintiff's  injury  in  the  law  and  by  the  complaint  and  testimony. 
This  ice  was  smooth  and  level,  and  accumulated  through  the  sole  agen- 
cy of  the  elements  and  in  the  order  of  nature.  No  argument,  specula- 
tion, or  casuistry  can  make  this  case  any  different  from  this.  The  main 
and  important  question  which  first  presents  itself  on  the  demurrer  to 
the  complaint,  and  again  on  the  motion  for  a  nonsuit,  is,  is  such  a  con- 
dition of  the  walk  an  actionable  defect?  *  *  *  'j^^g  ]^qIq  qj-  (jg_ 
pression  does  not  combine  with  the  ice,  and  is  not  present  with  it. 
There  is  no  hole  at  the  time,  as  it  is  filled  with  ice,  and  the  surface  is 
made  level  as  ice  can  be  anywhere.  The  plaintiff  was  not  injured  by 
stepping  into  the  hole,  but  by  slipping  on  the  ice.  But  I  have  said 
enough  of  this.  The  hole  w^as  only  the  remote  cause,  or  cause  of  caus- 
es, which  produced  the  result,  and  was  not  the  direct,  efficient,  or  ade- 
quate cause,  which  alone  is  actionable.     *     *     *  ^° 

2  0  Contra:  McCloskev  v.  Moies,  19  R.  I.  297,  33  Atl.  225  (1895);  Adams  v. 
Chicopee,  147  Mass.  440,  18  N.  E.  231  (1888). 


Ch.  1)  DIRECT    AND    CONSEQUENTIAL    DAMAGES.  171 

GREEN-WHEELER  SHOE  CO.  v.  CHICAGO,  R.  I.  &  P.  RY.  CO. 

(Supreme  Court  of  Iowa,  lUOG.     130  Iowa,  123,  lOG  N.  W.  498, 
5  L.  R.   A.   [N.   S.]   8S2.) 

Action  to  recover  the  value  of  two  parcels  of  goods  delivered  by 
plaintiff  to  defendant  at  Ft.  Dodge,  Iowa,  one  parcel  to  go  to  Boone- 
ville.  Mo.,  and  the  other  to  Chanute,  Kan.,  one  of  which  it  is  alleged 
was  lost  and  the  otlier  damaged  by  defendant's  negligence.  The  case 
was  tried  on  an  agreed  statement  of  facts  and  judgment  was  rendered 
for  defendant.     Plaintiff  appeals.     Reversed. 

McClain,  C.  J.'^  In  the  agreed  statement  on  which  the  case  was 
tried  without  other  evidence  being  introduced,  it  is  stipulated  that  the 
defendant  was  guilty  of  negligent  delay  in  the  forwarding  of  the  goods 
of  plaintiff  from  Ft.  Dodge  to  Kansas  City,  where  they  were  lost  or 
injured  on  May  30, 1903,  by  a  flood  which  was  so  unusual  and  extraor- 
dinary as  to  constitute  an  act  of  God,  and  that  if  there  had  been  no 
such  negligent  delay  the  goods  would  not  have  been  caught  in  the  flood 
referred  to  or  damaged  thereby. 

We  have  presented  for  our  consideration,  therefore,  the  simple  ques- 
tion whether  a  carrier  who  by  a  negligent  delay  in  transporting  goods 
has  subjected  them,  in  the  course  of  transportation,  to  a  peril  which 
has  caused  their  damage  or  destruction,  and  for  the  consequence  of 
which  the  carrier  would  not  have  been  liable  had  there  been  no  negli- 
gent delay  intervening,  is  liable  for  the  loss.  On  this  question  there 
is  a  well-recognized  conflict  in  the  authorities.  In  several  well-con- 
sidered cases  decided  by  courts  of  high  authority  it  was  decided,  while 
the  question  was  still  new,  that  the  negligent  delay  of  the  carrier  in 
transportation  could  not  be  regarded  as  the  proximate  cause  of  an  ulti-- 
mate  loss  by  a  casualty  which  in  itself  constituted  an  act  of  God,  as 
that  term  is  used  in  defining  the  carrier's  exemption  from  liability,  al- 
though had  the  goods  been  transported  with  reasonable  diligence  they 
would  not  have  been  subjected  to  such  casualty,  and  these  cases  are 
very  similar  to  the  one  before  us  inasmuch  as  the  loss  in  each  instance 
was  due  to  the  goods  being  overtaken  by  an  unprecedented  flood  for 
the  consequence  of  which  the  carrier  would  not  be  responsible.  Mor- 
rison V.  Davis,  20  Pa.  171,  57  Am.  Dec.  695;  Denny  v.  New  York 
Cent.  R.  Co.,  13  Gray  (Mass.)  481,  7-4  Am.  Dec.  G 15 ;  Railroad  Co. 
V.  Reeves,  10  Wall.  176,  19  L.  Ed.  909 ;  Daniels  v.  Ballantine,  23  Ohio 
St.  532,  13  Am.  Rep.  264;  Hunt  v.  Missouri,  K.  &  T.  R.  Co.  (Tex. 
Civ.  App.)  74  S.  W.  69;  Gleeson  v.  Virginia  Midland  R.  Co.,  5  Mack- 
ey  (D.  C.)  356.  These  cases  are  predicated  upon  the  view  that  if  the 
carrier  could  not  reasonably  have  foreseen  or  anticipated  that  the  goods 
would  be  overtaken  by  such  a  casualty  as  a  natural  and  probable  re- 
sult of  the  delay,  then  the  negligent  delay  was  not  the  proximate  cause 
of  the  loss,  and  should  be  disregarded  in  determining  the  liability  for 

2  1  Tart  of  the  opinion  is  omitted. 


172  COMPENSATORY  DAMAGES.  (Part    5 

such  loss.  A  similar  course  of  reasoning  has  been  applied  in  other  cas- 
es, where  the  loss  has  been  due  immediately  to  some  cause  such  as  ac- 
cidental fire  involving  no  negligence  on  the  part  of  the  carrier  and  with- 
m  a  valid  exception  in  the  bill  of  lading,  but  the  goods  have  been 
brought  within  the  peril  stipulated  against  l^y  negligent  delay  in  trans- 
portation, Hoadley  v.  Northern  Transp,  Co.,  115  Mass.  304,  15  Am. 
Rep.  lOG;  Yazoo  &  M.  V.  R.  Co.  v.  JMillsaps,  76  Miss.  855,  25  South. 
672,  71  Am.  St.  Rep.  543 ;  General  Fire  Extinguisher  Co.  v.  Carolina 
&  N.  W.  R.  Co.,  137  N.  C.  278,  47  S.  E.  208.  For  similar  reasons  it 
has  been  held  that  loss  of  or  injury  to  the  goods  by  reason  of  their  in- 
herent nature,  as  by  freezing  or  the  like,  will  not  render  the  carrier 
liable,  even  after  negligent  delay  in  transportation,  if  such  casualty 
could  not  have  been  foreseen  or  anticipated  as  the  natural  and  proba- 
ble consequence  of  such  delay.  Michigan  Cent.  R.  Co.  v.  Burrows,  33 
Mich.  6 ;  Herring  v.  Chesapeake  &  W.  R.  Co.,  101  Va.  778,  45  S.  E. 
322. 

On  the  other  hand,  it  was  held  by  the  Court  of  Appeals  of  New  York 
in  a  case  arising  out  of  the  same  flood  which  caused  the  destruction 
of  the  goods  involved  in  Denny  v.  New  York  Cent.  R.  Co.,  13  Gray 
(Mass.)  481,  74  Am.  Dec.  645,  supra,  that  the  preceding  negligent  de- 
lay on  the  part  of  the  carrier,  in  consequence  of  which  the  goods  were 
overtaken  by  the  flood,  was  sufficient  ground  for  holding  the  carrier 
to  be  liable  for  the  loss.  Michaels  v.  New  York  Cent.  R.  Co.,  30  N. 
Y.  564,  86  Am.  Dec.  415;  Read  v.  Spaulding,  30  N.  Y.  630,  86  Am. 
Dec.  426.  And  the  same  court  has  adhered  to  this  view  in  case  of  a 
loss  by  fire  covered  by  valid  exception  in  the  bill  of  lading.  Condict 
V.  Grand  Trunk  R.  Co.,  54  N.  Y.  500.  The  IlHnois  Supreme  Court 
has  consistently  followed  the  rule  of  the  New  York  cases  in  holding 
that  negligent  delay  subjecting  the  goods  to  loss  by  the  Johnstown 
flood  rendered  the  carrier  liable  (Wald  v.  Pittsburg,  C,  C.  &  St.  L. 
R.  Co.,  162  111.  545,  44  N.  E.  888,  35  E.  R.  A.  356,  53  Am.  St.  Rep. 
332)  and  likewise  that  similar  delay  rendered  the  carrier  liable  for 
damage  to  the  goods  by  freezing.     *     *     * 

The  irreconcilable  conflict  in  the  authorities  is  recognized  by  text- 
writers,  and  while  the  weight  of  general  authority  has  in  many  cases 
been  said  to  support  the  rule  announced  in  Massachusetts  and  Penn- 
sylvania cases  (1  Thompson,  Negligence,  §  74;  Schouler,  Bailments 
[Ed.  1905]  §  348;  Hale,  Bailments  and  Carriers,  361;  6  Cyc.  382; 
notes  in  36  Am.  St.  Rep.  838),  other  authorities  prefer  the  New  York 
rule  (Hutchinson,  Carriers  [2d  Ed.]  §  200;  Ray,  Negligence  of  Im- 
posed Duties,  177).  In  the  absence  of  any  express  declaration  of  this 
court  on  the  very  point,  and  in  view  of  the  fact  that  in  most  recent 
cases  the  conflict  of  authority  is  still  recognized  (see  5  Cur.  Law,  517) 
it  seems  necessary  that  the  reasons  on  which  the  two  lines  of  cases 
are  supported  shall  be  considered  in  order  that  we  may  now  reach  a 
conclusion  which  shall  be  satisfactory  to  us.     =k     *     * 

Now,  while  it  is  true  that  defendant  could  not  have  anticipated  ^.his 


""^^  -.tt^aV— 


c^ 


Ch.  1)  DIRECT    AND    CONSEQUENTIAL    DAMAGES.  1T;> 

particular  flood  and  could  not  have  foreseen  that  its  negligent  delay 
in  transportation  would  subject  the  goods  to  such  a  danger,  yet  it  is 
now  apparent  that  such  delay  did  subject  the  goods  to  the  danger,  and 
that  but  for  the  delay  that  would  not  have  been  destroyed;  and  de- 
fendant should  have  foreseen,  as  any  reasonable  person  could  foresee, 
that  the  negligent  delay  would  extend  the  time  during  which  the  goods 
would  be  liable  in  the  hands  of  the  carrier  to  be  overtaken  by  some 
such  casualty,  and  would  therefore  increase  the  peril  that  the  goods 
should  be  thus  lost  to  the  shipper.  This  consideration  that  the  peril 
of  accidental  destruction  is  enhanced  by  the  negligent  extension  of  time 
during  which  the  goods  must  remain  in  the  carrier's  control  and  out 
of  the  control  of  the  owner,  and  during  which  some  casualty  may  over- 
take them,  has  not,  we  think,  been  given  sufficient  consideration  in 
the  cases  in  which  the  carrier  has  been  held  not  responsible  for  a  loss 
for  which  he  is  not  primarily  liable,  but  which  has  overtaken  the  goods 
as  a  consequence  of  the  preceding  delay  in  their  transportation. 

It  is  not  sufficient  for  the  carrier  to  say  by  way  of  excuse  that  while 
a  proper  and  diligent  transportation  of  the  goods  would  have  kept  them 
free  from  the  peril  by  which  they  were  in  fact  lost  it  might  have  sub- 
jected them  to  some  other  peril  just  as  great.  He  cannot  speculate  on 
mere  possibilities.     *     *     * 

We  are  satisfied  that  the  sounder  reasons,  supported  by  good  author- 
ity, require  us  to  hold  that  in  this  case  the  carrier  is  liable  for  the  loss 
of  and  damage  to  plaintiff's  goods,  and  the  judgment  of  the  trial  court 
is  therefore  reversed.^^ 


VOSBURG  V.  PUTNEY. 

(Supreme  Court  of  Wisconsin,  1890.     78  Wis.  85,  80  Wis.  523,  47  N.  W.  99. 
50  N.  W.  403,  14  L.  R.  A.  22G,  27  Am.  St.  Rep.  47.) 

The  plaintiff  was  about  14  years  of  age,  and  the  defendant  about 
11  years  of  age.  On  the  20th  day  of  February,  1889,  they  were  sit- 
ting opposite  to  each  other  across  an  aisle  in  the  high  school  of  the 
village  of  Waukesha.  The  defendant  reached  across  the  aisle  with 
his  foot,  and  hit  with  his  toe  the  shin  of  the  right  leg  of  the  plaintiff. 
The  touch  was  slight.  The  plaintiff  did  not  feel  it,  either  on  account  of 
its  being  so  slight  or  of  loss  of  sensation  produced  by  the  shock.  In  a 
few  moments  he  felt  a  violent  pain  in  that  place,  which  caused  him 
to  cry  out  loudly.  The  next  day  he  was  sick,  and  had  to  be  helped  to 
school.    On  the  fourth  day  he  was  vomiting,  and  Dr.  Bacon  was  sent 

22  Among  many  otlier  interesting  cases  involving  an  inquiry  as  to  wtiether 
the  act  complained  of  was  an  eliicient  factor  in  or  only  a  condition  ante- 
cedent to  tlie  injury,  the  following  may  be  especially  cited:  Bosch  v.  B.  &  M. 
R.  R.  Co.,  44  Iowa,  402,  24  Am.  Rep.  754  (1S7G);  Metallic  Compression  Co. 
V.  Fitchburg  R.  R.  Co.,  109  Mass.  277,  12  Am.  Rep.  689  (lS72i ;  McClary  v. 
Sioux  City  &  P.  R.  R.  Co.,  3  Neb.  44,  19  Am.  Rep.  631  (1873);  Morrison  v. 
Davis  &  Co.,  20  Pa.  171,  57  Am.  Doc.  695  (1852) ;  Alexander  v.  Town  of  New- 
castle, 115  Ind.  51,  17  N.  E.  200  (1888);  Dubuque  Wood  &  Coal  Ass'n  v.  f>»- 
buque,  30  Iowa,  176  (1S70). 


174  COMPENSATORY  DAMAGES.  (Part    5 

for,  but  could  not  come,  and  he  sent  medicine  to  stop  the  vomiting,  and 
came  to  see  him  the  next  day,  on  the  25th.  There  was  a  sHght  dis- 
coloration of  the  skin  entirely  over  the  inner  surface  of  the  tibia  an 
inch  below  the  bend  of  the  knee.  The  doctor  applied  fomentations, 
and  gave  him  anodynes  to  quiet  the  pain.  This  treatment  was  continu- 
ed, and  the  swelling  so  increased  by  the  5th  day  of  March  that  coun- 
sel was  called,  and  on  the  8th  of  March  an  operation  was  performed 
on  the  limb  by  making  an  incision,  and  a  moderate  amount  of  pus  es- 
caped. A  drainage  tube  was  inserted,  and  an  iodoform  dressing  put 
on.  On  the  sixth  day  after  this,  another  incision  was  made  to  the 
bone,  and  it  was  found  that  destruction  was  going  on  in  the  bone,  and 
so  it  has  continued  exfoliating  pieces  of  bone.  He  will  never  recover 
the  use  of  his  limb.  There  were  black  and  blue  spots  on  the  shin  bone, 
indicating  that  there  had  been  a  blow.  On  the  1st  day  of  January  be- 
fore, the  plaintiff  received  an  injury  just  above  the  knee  of  the  same 
leg  by  coasting,  which  appeared  to  be  healing  up  and  drying  down  at 
the  time  of  the  last  injury.  The  theory  of  at  least  one  of  the  medical 
witnesses  was  that  the  limb  was  in  a  diseased  condition  when  this 
touch  or  kick  was  given,  caused  by  microbes  entering  in  through  the 
wound  above  the  knee,  and  which  were  revivified  by  the  touch,  and 
that  the  touch  was  the  exciting  or  remote  cause  of  the  destruction  of 
the  bone,  or  of  the  plaintiff's  injury.  It  does  not  appear  that  there  was 
any  visible  mark  made  or  left  by  this  touch  or  kick  of  the  defendant's 
foot,  or  any  appearance  of  injury  until  the  black  and  blue  spots  were 
discovered  by  the  physician  several  days  afterwards,  and  then  there 
were  more  spots  than  one.  There  was  no  proof  of  any  other  hurt, 
and  the  medical  testimony  seems  to  have  been  agreed  that  this  touch 
or  kick  was  the  exciting  cause  of  the  injury  to  the  plaintiff.  The  jury 
rendered  a  verdict  for  the  plaintiff  of  $2,800. 

Lyon,  J.^^  *  *  *  Certain  questions  were  proposed  on  behalf 
of  defendant  to  be  submitted  to  the  jury,  founded  upon  the  theory 
that  only  such  damages  could  be  recovered  as  the  defendant  might  rea- 
sonably be  supposed  to  have  contemplated  as  likely  to  result  from  his 
kicking  the  plaintiff.  The  court  refused  to  submit  such  questions  to 
the  jury.  The  ruling  was  correct.  The  rule  of  damages  in  actions  for 
torts  was  held  in  Brown  v.  Railway  Co.,  5i  Wis.  342,  11  N.  W.  35 G, 
911,  41  Am.  Rep.  41,  to  be  that  the  wrongdoer  is  liable  for  all  inju- 
ries resulting  directly  from  the  wrongful  act,  whether  they  could  or 
could  not  have  been  foreseen  by  him.'  The  chief  justice  and  the  writer 
of  this  opinion  dissented  from  the  judgment  in  that  case,  chiefly  be- 
cause we  were  of  the  opinion  that  the  complaint  stated  a  cause  of  ac- 
tion ex  contractu,  and  not  ex  delicto,  and  hence  that  a  different  rule 
of  damages — the  rule  here  contended  for — was  applicable.  We  did 
not  question  that  the  rule  in  actions  for  tort  was  correctly  stated.  That 
case  rules  this  on  the  question  of  damages.     *     *     * 

2  3  Part  of  the  opinion  is  omitted. 


Ch.  1)  DIRECT    AND    CONSEQUENTIAL    DAMAGES.  175 


McNAMARA  v.  VILLAGE  OF  CLINTONVILLE. 

(Supreme  Court  of  Wisconsin,  1S85.    62  Wis.  207,  22  N.  W.  472, 
51  Am.  Rep.  722.) 

The  plaintiff  stepped  off  an  elevated  walk,  which  was  not  protected 
by  railings,  and  was  severely  injured.  It  appeared  that  he  had  a  pre- 
disposition to  inflamatory  rheumatism,  and  it  was  asserted  that  his 
injuries  were  more  severe  and  his  sickness  more  prolonged  by  reason 
thereof.    From  a  judgment  for  the  plaintiff,  the  defendant  appeals. 

Cassoday,  J.-*  *  *  *  Exception  is  taken  because  the  court 
charged  the  jury,  in  effect,  that  if  they  found  for  the  plaintiff,  then 
no  deduction  should  be  made  from  the  damages  sustained,  by  reason 
of  his  disability  having  been  prolonged  in  consequence  of  a  predisposi- 
tion to  inflammatory  rheumatism,  and  because  the  court  refused  to 
charge,  in  effect,  ^hat  the  plaintiff  could  not  recover  if  the  injury  was 
the  result  of  the  disease,  and  not  the  direct  and  proximate  result  of  the 
defendant's  negligence.^  There  is  no  evidence  that  would  warrant  the 
jury  in  finding  that  the  disease  interfered  in  the  least  with  the  plain- 
tiff's powers  of  locomotion,  or  in  any  way  contributed  to  his  stepping 
or  falling  from  the  sidewalk  at  the  time  and  place  in  question.  The 
jury  have  found,  in  effect,  that  there  was  no  negligence  on  the  part 
of  the  plaintiff  contributing  to  the  injury,  and  hence  that  it  was  the 
direct  and  proximate  result  of  the  defendant's  negligence  alone.  The 
presence  of  the  disease  may  have  aggravated  and  prolonged  the  injury, 
and  correspondingly  increased  the  damages.  The  jury  were  express- 
ly authorized  to  include  in  their  verdict  such  increased  or  additional 
damages,  and  we  must  assume  that  they  did.     Was  this  error? 

Under  the  repeated  decisions  of  this  court,  we  must  answer  this 
question  in  the  negative.  Oliver  v.  La  Valle,  36  Wis.  592;  Stewart 
V.  Ripon,  38  Wis.  584;  Brown  v.  Railway  Co.,  54  Wis.  342,  11  N.  W. 
356,  911,  41  Am.  Rep.  41.  In  one  of  these  cases  the  plaintiff'  was  al- 
lowed to  recover  increased  damages  by  reason  of  an  organic  tendency 
to  scrofula  in  his  system,  and  in  each  of  the  others  by  reason  of  a  mis- 
carriage in  consequence  of  the  injury.  In  the  Brown  Case  the  distinc- 
tion was  made  between  actions  for  tort,  where  the  wrong-doer  is  held 
liable  for  all  injuries  naturally  resulting  directly  from  the  wrongful 
act,  though  unforeseen,  and  actions  for  the  breach  of  contract,  where 
the  damages  are  limited  to  such  as  arise  naturally  from  such  breach  of 
contract  itself,  or  from  such  breach  committed  under  circumstances  in 
the  contemplation  of  both  parties  at  the  time  of  the  contract.  *  *  * 
See,  also,  the  late  case  of  McMahon  v.  Field,  7  Q.  B.  Div.  595,  where 
the  plaintiff  recovered  on  contract  for  the  injury  to  his  horses,  who 
caught  cold  from  unnecessary  exposure  to  the  weather.  In  that  case 
Hobbs  V.  Railway,  L.  R.  10  Q.  B.  Ill,  is  severely  criticised  and  nar- 
rowly limited,  if  not  entirely  overruled.     *     *     *     In   McMahon  v. 

^*  I'art  of  the  opiuioii  is  oniitted.  aiul  the  statement  of  facts  is  rewritten. 


176  COMPENSATORY  DAMAGES.  (Part    5 

Field  one  of  the  judges  went  so  far  as  to  say  that  "the  parties  never 
contemplated  a  breach,  and  the  rule  should  rather  be  that  the  damage 
recoverable  is  such  as  is  the  natural  and  probable  result  of  the  breach 
of  contract."  To  the  same  effect  is  Ehrgott  v.  Mayor,  etc.,  96  N.  Y. 
280,  48  Am.  Rep.  622.  In  this  New  York  case  the  court  say:  "When 
a  party  commits  a  tort  resulting  in  a  personal  injury,  he  cannot  foresee 
or  contemplate  the  consequences  of  his  tortious  act.  *  *  *  A  city 
may  leave  a  street  out  of  repair,  and  no  one  can  anticipate  the  possi- 
ble accidents  which  may  happen,  or  the  injuries  which  may  be  caused. 
*  *  *  The  true  rule,  broadly  stated,  is  that  a  wrongdoer  is  liable 
for  the  damages  which  he  causes  by  his  misconduct."  96  N.  Y.  281, 
48  Am.  Rep.  622. 

"The  general  rule  in  tort,"  says  Mr.  Sutherland  (3  Suth.  Dam.  714), 
"is  that  the  party  who  commits  a  trespass,  or  other  wrongful  act,  is 
liable  for  all  the  direct  injury  resulting  from  such  act,  although  such 
resulting  injury  could  not  have  been  contemplated  as  the  probable  re- 
sult of  the  act  done."  This  is  expressly  sanctioned  in  the  Maryland 
case  cited  where  a  cancer  was  the  intervening  cause.  It  is  a  contradic- 
tion to  say  that  parties  contemplate — have  in  mind — things  of  which 
they  are  supposed  to  be  unmindful.  In  the  case  cited  from  Indiana 
the  court  say  a  wider  range  of  inquiry  is  permissible  in  actions  for 
tort  than  for  the  simple  breach  of  a  contract.  See  Shirley's  notes,  329. 
In  that  case  the  court  quotes  approvingly  the  rule  stated  by  Mr. 
Thompson,  which  is  substantially  the  same  rule  quoted  from  Addison 
approvingly  in  the  Maryland  case,  that  ''whoever  does  a  wrongful  act 
is  answerable  for  all  the  consequences  that  may  ensue  in  the  ordinary 
and  natural  course  of  events,  though  such  consequence  be  immediately 
and  directly  brought  about  by  intervening  causes,  if  such  intervening 
causes  were  set  in  motion  by  the  original  wrongdoer.")  Here  the  ac- 
tion is  not  on  contract,  but  for  a  tort  consisting  of  a  breach  of  statu- 
tory duty.  The  defect  in  the  walk  is  supposed  to  have  been  known  to 
the  officers  of  the  municipality.  The  predisposition  to  inflammatory 
rheumatism  was  an  intervening  cause,  but  it  was  set  in  motion  by  the 
tortious  act  complained  of.  It  is  not  likely  that  the  officers  of  the  vil- 
lage actually  contemplated  that  the  injury  in  question  would  result 
from  the  defect  in  the  walk.  They  must  have  known,  however,  that 
all  classes  of  people,  infirm  as  well  as  firm,  diseased  as  well  as  healthy, 
were  liable  to  travel  upon  the  walk.  Under  ordinary  circumstances 
the  infirm  and  diseased  would  have  no  difficulty  in  passing  over  the 
walk  without  incurring  injury.  But  the  plaintiff,  under  the  circum- 
stances stated,  as  found  by  the  jury,  incurred  the  injury  without  any 
fault  on  his  part.  The  mere  fact  that  he  was  more  susceptible  to  seri- 
ous results  from  the  injury  by  reason  of  the  presence  of  disease,  did 
not  prevent  him  from  recovering  the  damages  he  had  actually  sustain- 

25  The  fact  that  the  state  of  the  plaintiff's  health  or  a  pre-existing  tenrlon- 
cy  toward  disease  made  the  results  of  defendant's  wrongful  act  unusually 


Ch.  1)  DIRECT    AND    CONSEQUENTIAL   DAMAGES. 


LEWIS  V.  FLINT  &  P.  M.  RY.  CO. 

(Supremo  Court  of  Michigan,  1S84.     54  Mich.  Go,  19  N.  W.  744, 
52  Am.  Kep.   790.) 

CooLEY,  C.  J.*  Action  to  recover  damages  for  a  personal  injury. 
The  facts  as  they  appeared  on  the  trial  were  as  follows : 

The  plaintiff  resides  in  the  township  of  Huron,  a  few  miles  east  of 
Eelden  station,  on  the  road  of  defendant.  He  was  at  Wayne  station 
on  the  evening-  of  January  12,  1883,  awaiting  the  train  which  was  to 
go  south  past  Belden  in  the  night.  The  train  left  Wayne  at  3:05  in 
the  morning  of  the  13th,  and  he  procured  his  ticket  and  took  passage 
for  Belden,  where  the  train  was  due  at  3  :30.  The  night  was  dark, 
cold,  and  wet.  The  train  stopped  when  "Belden"  was  called,  and  plain- 
tiff got  off.  Belden  was  only  a  flag  station  for  this  train,  and  there  was 
no  one  in  charge  of  the  station-house,  and  no  light  there.  When  plain- 
tiff got  off  the  train  he  was  told  by  the  brakeman  or  conductor  that 
they  had  run  by  the  station  about  two  car  lengths,  and  he  replied  that 
if  that  was  all,  it  was  no  matter,  as  he  had  to  go  that  way.  An  east 
and  west  highway  crosses  the  railroad  about  24  rods  south  of  the  sta- 
tion-house, which  the  plaintiff  would  take  in  going  to  his  home.  If 
he  was  two  car  lengths  beyond  the  station-house,  he  would  still  be 
north  of  the  highway ;  and,  supposing  that  to  be  the  case,  he  followed 
the  track  along  south,  in  preference  to  going  back  to  the  station-house, 
from  which  a  passage  east  of  the  track  would  have  led  him  to  the  high- 
way. The  plaintiff  knew  the  place  well,  and  knew  that  on  the  track  he 
must  cross  an  open  cattle-guard  to  reach  the  highway.  He  had  cross- 
ed this  before,  and  sometimes  found  a  plank  laid  over  it.  Passing  on, 
he  soon  came  to  trees  which  he  knew  were  some  distance  south  of 
the  highway,  and  he  then  knew  the  information  given  him  as  to  where 
he  was  when  he  alighted  from  the  train  was  erroneous.  He  turned 
about  to  retrace  his  steps,  and  followed  the  track  in  the  direction  of 
the  highway.  This  he  did  carefully,  because  it  was  very  dark,  and  he 
knew  there  was  an  open  cattle-guard  on  the  south  side  of  the  high- 
way, as  well  as  on  the  north  side.  He  was  looking  for  this  cattle-guard 
constantly  and  carefully.  There  were  burning  kilns  near  to  the  track 
on  his  right,  and  the  smoke  from  these  affected  his  eyes,  but  he  saw  a 
switch  light,  which  he  knew  was  near  the  crossing,  but  which  at  the 
time  was  too  dim  to  aid  him.  He  continued  to  approach  the  cattle- 
guard  carefully,  intending,  if  there  was  a  timber  or  plank  over  it,  to 

serious,  docs  not  tlierefore  render  the  resulting  damage  remote.  Coleman  v. 
N.  Y.  &  N.  H.  R.  R.  Co.,  ]0(;  Mass.  IGO  (1S71) ;  Crane  Elevator  Co.  v.  Lippert 
r,.3  Fed.  042.  11  C.  C.  A.  521  (1894)  ;  Driess  v.  Fredericlc.  73  Tex.  4G0.  11  S. 
W.  49:)  (1889);  Baltimore  City  P.  R.  Co.  v.  Kemp,  Gl  Md.  G19,  48  Am.  Rep 
134  (1884) ;  Tice  v.  Munn,  94  N.  Y.  G21  (18.83) ;  Mann  Boudoir  Car  Co.  v.  Dupre, 
54  Fed.  (J4G.  4  C.  C.  A.  540,  21  L.  R.  A.  289  (1S93). 
•Part  of  the  opinion  is  omitted. 
Gilb.Dam.— 12 


178  COMPENSATORY  DAMAGES.  (Part    5 

cross  upon  that;  and  if  not,  then  to  pass  down  into  it  and  climb  out. 
In  the  dim  Hght  he  saw  what  he  believed  to  be  the  cattle-guard,  which 
seemed  to  be  several  paces  off,  but  at  the  very  next  step  one  foot  slip- 
ped, and  as  he  attempted  to  save  himself  by  springing  upon  the  other, 
the  other  foot  caught,  and  he  was  precipitated  into  the  cattle-guard, 
and  he  received  an  injury  of  a  very  serious  and  permanent  nature.  He 
was  for  a  time  senseless,  but  then  succeeded  in  drawing  himself  out 
by  his  elbows, — not  being  able  to  use  his  lower  limbs, — and  with  great 

difficulty  he  reached  a  neighboring  tavern,  where  he  was  cared  for. 
*     *     * 

The  court  took  the  case  from  the  jury,  and  directed  a  verdict  for  the 
defendant.  This  direction  is  understood  to  have  been  given  on  the 
ground  that  the  injury  which  the  plaintiff  suffered  was  not  proximate 
to  the  wrong  attributable  to  the  defendant  and  for  that  reason  would 
not  support  an  action.  The  wrong  of  the  defendant  consisted  in  carry- 
ing the  plaintiff  past  the  station,  and  then  giving  him  erroneous  in- 
formation as  to  where  he  was.  If  the  injury  suffered  was  not  a  proxi- 
mate consequence  of  this  wrong,  the  instruction  of  the  court  was  right ; 
otherwise,  not.  The  difficulty  here  is  in  determining  what  is  and  what 
is  not  a  proximate  consequence  in  contemplation  of  law. 

For  the  plaintiff,  the  cases  are  cited  in  which  it  has  been  held  that 
one  whose  negligence  causes  a  fire  by  the  spreading  of  which  the  prop- 
erty of  another  is  destroyed,  is  liable  for  the  damages,  though  the  prop- 
erty for  which  the  compensation  was  claimed  was  only  reached  by  the 
fire  after  it  had  passed  through  intervening  fields  or  buildings.  Kel- 
logg V.  Railroad  Co.,  26  Wis.  223,  7  Am.  Rep.  G9 ;  Fent  v.  Railroad 
Co.,  59  111.  349,  14  Am.  Rep.  13 ;  Wiley  v.  Railroad  Co.,  44  N.  J.  Law, 
248;  Railroad  Co.  v.  Kellogg,  94  U.  S.  4G9,  24  L.  Ed.  256.  But  these 
cases,  we  think,  are  not  analogous  to  the  one  before  us.  *  *  *  To 
show  what  is  understood  by  intervening  cause,  it  may  be  useful  to  re- 
fer to  a  few  cases : 

Ivivie  v.  Janson,  12  East,  648,  was  a  case  of  insurance  on  a  ship 
warranted  free  of  American  condemnation.  In  sailing  out  of  New 
York  she  was  damaged  by  perils  of  the  sea,  stranded,  and  wrecked  on 
Governor's  Island,  and  then  seized  and  condemned.  It  was  the  peril 
of  the  sea  that  caused  the  vessel  to  be  seized  and  condemned;  but  as 
the  condemnation  was  the  proximate  cause  of  the  loss,  the  insurers 
were  held  not  liable.  A  similar  case  is  Delano  v.  Insurance  Co.,  10 
Mass.  354,  6  Am.  Dec.  132,  where  a  like  result  was  reached. 

In  Tisdale  v.  Norton,  8  Mete.  (Mass.)  388,  the  facts  were  that  a 
highway  was  defective  and  the  plaintiff,  who  was  using  it,  went  out 
of  it  into  the  adjoining  field,  where  he  sustained  an  injury.  He 
brought  suit  against  the  town,  whose  duty  it  was  to  keep  the  highway 
in  repair.  But  the  court  held  that  only  as  a  remote  cause  could  the  in- 
jury of  the  plaintiff  be  said  to  be  due  to  the  defect  in  the  highway. 
The  proximate,  not  the  remote,  cause  is  that  which  is  referred  to  in 


Ch.  1)  DIRECT    AND    CONSEQUENTIAL   DAMAGES.  179 

the  statute  which  gives  an  action  against  the  town ;  and  the  proximate 
cause  in  this  case  was  outside  the  highway,  not  witliin  it. 

In  Anthony  v.  Slaid,  11  Mete.  (Alass.)  290,  the  plaintiff,  who  was 
contractor  with  a  town  to  support  for  a  specified  time  and  for  a  fixed 
sum  all  the  town  paupers  in  sickness  and  in  hcaltli,  brought  suit  against 
one  who,  it  was  alleged,  had  assaulted  and  beaten  one  of  the  paupers, 
as  a  consequence  of  which  the  plaintiff'  was  put  to  increased  expense 
for  care  and  support,  but  the  action  was  held  not  maintainable. 

In  Silver  v.  Frazier,  3  Allen  (Mass.)  382,  81  Am.  Dec.  (iG3,  it  was 
decided  that  a  principal  whose  agent  has  disobeyed  his  instructions, 
induced  to  do  so  by  the  false  representations  of  a  third  party,  cannot 
maintain  an  action  against  such  third  party  for  the  damage  sustained. 
Said  Bigelow,  C.  J.:  "The  alleged  loss  or  injury  suffered  by  the  plain- 
tiff" is  not  the  direct  and  immediate  result  of  the  defendant's  wrongful 
act.  Stripped  of  its  technical  language,  the  declaration  charges  only 
that  the  agent  employed  by  the  plaintiff'  to  do  a  certain  piece  of  work 
disobeyed  the  orders  of  his  principal,  and  was  induced  to  do  so  by  the 
false  statement  of  the  defendant.  In  other  words,  the  plaintiff"  al- 
leges that  his  agent  violated  his  duty,  and  thereby  did  him  an  injury, 
and  seeks  to  recover  damages  therefor  by  an  action  against  a  third 
person,  on  the  ground  that  he  induced  the  agent,  by  false  statements, 
to  go  contrary  to  the  orders  of  his  principal.  Such  an  action  is,  we 
believe,  without  precedent.  The  immediate  cause  of  injury  and  loss 
to  the  plaintiff  is  the  breach  of  duty  of  his  agent.  This  is  the  proxi- 
mate cause  of  damage.  The  motives  or  inducements  which  operated 
to  cause  the  agent  to  do  an  unauthorized  act  are  too  remote  to  fur- 
nish a  good  cause  of  action  to  the  plaintiff." 

In  Dubuque  Wood  &  Coal  Ass'n  v.  Dubuque,  30  Iowa,  176,  the  facts 
were  that  the  plaintiff  had  a  quantity  of  wood  deposited  at  one  end  of 
a  bridge,  which  was  to  be  taken  over  the  bridge  into  the  city  of  Du- 
buque. The  bridge  was  out  of  repair,  and,  while  awaiting  repair  by 
the  city,  whose  duty  it  was,  the  wood  was  carried  away  by  a  tlood. 
The  plaintiff"  sued  the  city  for  the  value  of  his  wood ;  but  it  was  held 
he  could  not  recover.  Beck,  J.,  in  deciding  the  case,  illustrates  the 
principle  as  follows:  "An  owner  of  lumber  deposited  upon  the  levee 
of  the  city  of  Dubuque,  exposed  to  the  floods  of  the  river,  starts  with 
his  team  to  remove  it.  A  bridge  built  by  the  city,  which  he  attempts 
to  cross,  from  defects  therein,  falls,  and  his  horses  are  killed.  By  the 
breaking  of  the  bridge  and  the  loss  of  his  team  he  is  delayed  in  remov- 
ing his  property.  On  account  of  this  delay  his  lumber  is  carried  away 
by  the  flood  and  lost.  The  proximate  consequence  of  the  negligence 
of  the  city  is  the  loss  of  his  horses;  the  secondary  consequence,  re- 
sulting from  the  first  consequence,  is  the  delay  in  removing  the  lumber, 
which  finally  caused  its  loss.  Damage  on  account  of  the  first  is  recov- 
erable, but  for  the  second  is  denied."     *     *     * 

In  Bosch  v.  Railroad  Co.,  44  Iowa,  402,  24  Am.  Rep.  754,  the  plain- 
tiff's house  took  fire,  and  the  fire  department,  because,  as  was  alleged, 


180  COMPENSATORY  DAMAGES.  (Part   5 

of  the  wrongful  occupation  and  expansion  of  the  river  bank,  were  un- 
able to  get  to  the  river  to  obtain  water  for  putting  out  the  fire.  Plain- 
tilt  sued  the  defendant  for  the  loss  of  his  property,  but  the  court  said 
the  acts  of  defendant  complained  of  "have  no  connection  with  the 
fire,  nor  with  the  hose  or  other  apparatus  of  the  fire  companies.  They 
are  independent  acts,  and  their  influence  in  the  destruction  of  plaintiff's 
property  is  too  remote  to  be  made  the  basis  of  recovery." 

In  this  last  case  Metallic  Compression  Co.  v.  Railroad  Co.,  109  Mass. 
277,  12  Am.  Rep.  689,  was  referred  to  and  distinguished.  The  facts 
there  were  that  the  plaintiff's  building  was  on  fire,  and  water  was  be- 
ing thrown  upon  it  through  hose,  when  an  engine  of  defendant  was 
recklessly  run  upon  the  hose  and  severed  it,  thereby  defeating  the  ef- 
forts to  extinguish  the  fire,  which  otherwise  were  likely  to  succeed. 
In  that  case  the  relation  of  the  plaintiff's  injury  to  the  defendant's  act 
was  direct  and  immediate.     *     *     * 

Further  reference  to  authorities  is  needless.  The  application  of  the 
rule  that  the  proximate,  not  the  remote  cause  is  to  be  regarded,  is  ob- 
scure and  difficult  in  many  cases,  but  not  in  this.  By  the  wrong  of  the 
defendant  the  plaintiff  was  carried  past  the  station  where  he  had  a 
right  to  be  left,  and  beyond  where  he  had  a  right,  from  the  information 
received  from  defendant's  servants,  to  suppose  he  was  when  he  left 
the  car.  For  any  injury  or  inconvenience  naturally  resulting  from  the 
wrong,  and  traceable  to  it  as  the  proximate  cause,  the  defendant  may 
be  held  responsible.  But  before  any  injury  had  been  sustained  the 
plaintiff  discovered  where  he  was,  and  started  back  for  the  road  which 
he  had  intended  to  take.  Whatever  danger  there  was  to  be  encounter- 
ed in  the  way  was  to  be  found  in  the  cattle-guard,  and  this  he  under- 
stood and  calculated  upon.  *  *  *  Misled  apparently  by  visual 
deception,  he  moved  forward  under  a  supposition  that  the  cattle-guard, 
upon  the  brink  of  which  he  already  stood,  was  some  paces  off,  and  his 
deception,  with  the  slipping  of  his  foot,  concurred  to  produce  the  in- 
jury. What  was  this  but  pure  accident?  It  was  an  event  which  hap- 
pened unexpectedly  and  without  fault.  The  defendant  or  its  agents 
had  not  produced  the  deception  or  caused  the  foot  to  slip;  and  such 
wrong  as  the  defendant  had  been  guilty  of  was  in  no  manner  connect- 
ed with  or  related  to  the  injury  except  as  it  was  the  occasion  for  bring- 
ing the  plaintiff  where  the  accident  occurred.  It  was  after  the  plain- 
tiff had  been  brought  there  that  the  cause  of  injury  unexpectedly  arose. 
If  lightning  had  chanced  to  strike  the  plaintiff  at  that  place,  the  fault 
of  the  defendant  and  its  relation  to  the  injury  would  have  been  the 
same  as  now,  and  the  injury  could  have  been  charged  to  the  defendant 
with  precisely  the  same  reason  as  now.  If  the  accidental  discharge  of  a 
gun  in  the  hands  of  some  third  person  had  wounded  the  plaintiff  as 
he  approached  the  cattle-guard,  the  connection  of  defendant's  wrong 
with  the  injury  would  have  been  precisely  the  same  which  appears  here. 
But  the  proximate  cause  of  injury  in  the  one  case  would  have  been 
the  act  of  God;  in  the  other,  inevitable  accident;   but  not  more  plain- 


Ch.  1)  DIRECT    AND    CONSEQUENTIAL    DAMAGES.  181 

ly  accident  than  was  the  proximate  cause  here.  Back  of  that  cause 
in  this  case  were  many  others,  all  conducing  to  bring  the  plaintiff  to 
the  place  of  the  danger  and  the  injury;  the  act  of  the  defendant  was 
the  last  of  a  long  sequence ;  but,  as  between  the  causes  which  precede 
the  proximate  cause,  the  law  cannot  select  one  rather  than  any  other 
as  that  to  which  the  final  consequence  shall  be  attributed,  and  it  stops 
at  the  proximate  cause,  because  to  go  back  of  it  would  be  to  enter  up- 
on an  investigation  which  would  be  both  endless  and  useless. 

The  injury  being  the  result  of  pure  accident,  the  party  upon  whom 
it  has  chanced  to  fall  is  necessarily  left  to  bear  it.     *     *     * 


BROWN  V.  CHICAGO,  M.  &  ST.  P.  RY.  CO. 

(Supreme  Court  of  Wisconsin,  1882.     54  Wis.  342,  11  N.   W.   356,  911, 

41  Am.  Kep.  41.) 

The  plaintiffs  took  defendant's  train  from  Kilbourn  for  Mauston, 
and  were  put  off  instead  three  miles  distant  from  the  latter  place  by 
the  brakeman.  It  was  night  and  cloudy.  They  started  west  on  the 
track  towards  Mauston,  expecting  to  find  a  house  where  they  might 
stop,  but  did  not  find  one  until  they  came  to  the  bridge,  about  a  mile 
east  of  Mauston,  and  then  they  thought  it  easier  to  go  on  to  Mauston 
than  seek  shelter  at  the  house,  which  was  a  considerable  distance  from 
the  track.  They  went  on  to  Mauston  and  arrived  there  late  at  night, 
Mrs.  Brown  quite  exhausted  from  the  walk.  She  was  pregnant  at  the 
time.  She  had  severe  pains  during  the  night,  and  the  pains  continued 
from  time  to  time,  and  after  a  few  days  she  commenced  flowing.  The 
pains  and  flowing  continued  until  some  time  in  December,  when  a  mis- 
carriage took  place,  after  which  inflammation  set  in,  and  for  some  time 
she  was  so  sick  that  she  was  in  imminent  danger  of  dying.  The  plain- 
tiffs claim  that  the  miscarriage  and  subsequent  sickness  were  all  caus- 
ed by  the  walk  Mrs.  Brown  was  compelled  to  take. 

Taylor,  J.^®  *  *  *  ^^^q  f^^st  position  taken  by  the  learned 
counsel  for  the  appellant  is  that  the  cause  of  action  set  out  in  the  plain- 
tiffs' complaint  is  for  a  breach  of  contract,  and  not  an  action  in  tort. 
Upon  this  point  we  cannot  agree  with  the  appellant.  We  think  the 
gravamen  of  the  action  is  the  negligence  and  carelessness  of  the  ap- 
pellant's agents  and  employes  in  directing  the  plaintiffs  to  leave  the 
train  before  they  had  arrived  at  the  end  of  their  journey.  They  did 
not  leave  at  a  place  short  of  their  destination  knowing  that  fact,  but 
through  the  neglect  of  the  appellant's  employes  they  were  induced  to 
leave  the  train  short  of  their  journey's  end,  supposing  that  they  had 
reached  it.  It  is  true,  the  plaintiffs  in  their  complaint  state  that  they 
paid  their  fare  and  went  on  board  the  train  as  passengers,  to  be  car- 
ried from  one  point  to  another  upon  the  appellant's  road,  and  that  by 

20  Part  of  the  opir.ion  is  cmiltou. 


182  COifPENSATORY   DAMAGES.  (Part    5 

reason  of  such  payment  and  entry  upon  that  train  it  became  the  duty  of 
the  appellant  to  carry  them  from  the  po;nt  of  starting  to  their  destina- 
tion. These  facts  are,  perhaps,  sufficient  to  constitute  a  contract  on 
the  part  of  the  appellant  to  safely  carry  them  to  their  destination. 
Still,  it  is  necessary  in  all  actions  against  a  carrier  of  passengers  to 
state  facts  which  show  the  right  of  the  party  to  be  carried  before  he 
can  complain  of  any  breach  of  duty  on  the  part  of  the  carrier  in  not 
conveying  them  safely,  or  in  not  carrying  them  to  their  destination. 
The  complaint  in  this  case  is  not  so  much  that  the  plaintiffs  were  not 
carried  to  their  destination,  but  that  on  the  way  the  appellant's  em- 
ployes carelessly  and  negligently  induced  them  to  quit  the  train  before 
they  arrived  at  their  flestination,  and  that  in  consequence  of  such  wrong 
on  the  part  of  the  appellants  they  suffered  damage.  It  is  the  negli- 
gence in  putting  the  plaintiffs  off  the  train  before  the  journey  was  com- 
pleted which  is  complained  of,  and  not  a  breach  of  the  contract  for 
not  carrying  them  to  the  end  of  their  journey.     *     *     * 

In  this  case  we  deem  it  material  to  determine  whether  the  action  is 
an  action  for  a  tort,  or  an  action  for  a  breach  of  the  contract  to  carry 
the  plaintiffs  to  their  destination,  because  we  think  the  rules  of  dam- 
ages in  the  two  actions  are  essentially  different.  We  hold  that  the 
action  in  this  case  is  based  upon  the  tort  of  the  defendant  in  negligent- 
ly and  carelessly  directing  the  plaintiffs  to  leave  the  cars  before  they 
reached  their  destination.     *     *     * 

The  important  question  in  the  case  is  whether  the  appellant  is  lia- 
ble for  the  injury  to  Mrs.  Brown,  admitting  that  it  was  caused  by  her 
walk  to  Mauston.  Whether  the  sickness  of  Mrs.  Brown  was  caused 
by  the  walk  to  Mauston  was  an  issue  in  the  case,  and  the  jury  have 
found  upon  the  evidence  that  it  was  caused  by  the  walk.  There  is 
certainly  some  evidence  to  sustain  this  finding  of  the  jury,  and  their 
finding  is,  therefore,  conclusive  upon  this  point.  Admitting  that  the 
walk  caused  the  miscarriage  and  sickness  of  the  plaintiff  Mrs,  Brown, 
it  is  insisted  by  the  learned  counsel  for  the  appellant  that  the  appel- 
lant is  not  liable  for  such  injury;  that  it  is  too  remote  to  be  the  subject 
of  an  action ;  that  the  negligence  and  carelessness  of  the  defendant's 
employes  in  putting  the  plaintiffs  off  the  cars  at  the  place  they  did 
was  not  the  proximate  cause  of  the  miscarriage  and  sickness,  and  for 
that  reason  the  appellant  company  is  not  liable  therefor. 

To  sustain  this  position  of  the  learned  counsel  for  the  appellant  re- 
liance is  placed  upon  the  case  of  Walsh  v.  Railway  Co.,  42  Wis.  23, 
24  Am.  Rep.  376,  and  it  is  insisted  that  there  can  be  no  real  distinc- 
tion made  between  that  case  and  this.  Upon  a  careful  examination  of 
that  case  it  will  be  seen,  we  think,  the  court  did  distinguish  between 
an  action  which  was  purely  an  action  for  a  breach  of  contract  and  one 
in  tort.  *  *  *  The  present  Chief  Justice,  who  wrote  the  opin- 
ion in  the  case,  takes  special  pains  to  show  that  the  action  was  based 
solely  upon  a  breach  of  contract,  and  was  in  no  sense  an  action  of 


183 


Ch.  1)  DIRECT    AND    CONSEQUENTIAL    DAMAGES. 

tort,  and  he  expressly  declares  that  the  rule  of  damages  is  not  the 
same  where  the  action  is   for  a  breach  of   contract  as   for  a  tort. 


*     «     * 


The  Chief  Justice  then  quotes  at  large  from  the  case  of  Hobbs  v. 
Railway  Co.,  10  L.  R.  Q.  B.  Ill,  with  approval.  In  that  case  the 
English  Court  of  Appeals  held  that  when  the  railway  company  had 
neglected  or  refused  to  carry  the  plaintiffs  to  their  destmation,  and 
they  were  compelled  to  get  out  at  a  station  about  five  miles  from  it, 
late  at  night,  and  being  unable  to  get  a  conveyance  or  accommodation 
at  an  inn  they  walked  home  a  distance  of  five  miles  in  the  rain,  and  the 
wife  caught  cold  and  was  sick  as  a  consequence  of  the  walk  and  ex- 
posure, they  could  not  recover  for  the  injury  to  the  wite.  It  would 
seem,  from  the  opinions  given  by  the  learned  judges  in  the  Hobbs 
Case'  that  they  treated  the  action  as  an  action  upon  contract  and  not 
an  action  for  a  tort.  All  the  judges  speak  of  it  as  an  action  to  re- 
cover for  the  breach  of  contract  to  carry  the  plaintiffs  to  their  destina- 

The  rule  as  to  what  damages  may  be  recovered  in  actions  for  breach 
of  contract  is  laid  down  by  this  court  in  the  case  of  Candee  v.  Tele- 
graph Co.,  3-4  Wis.  479,  17  Am.  Rep.  452,  cited  from  Hadley  v.  Bax- 
endale,  9  Exch.  341,  and  approved.  It  is  as  follows:  "Where  two  par- 
ties have  made  a  contract,  which  one  of  them  has  broken,  the  damages 
which  the  other  ought  to  receive  in  respect  of  such  breach  of  contract 
should  be  either  such  as  may  fairly  and  substantially  be  considered  as 
arising  naturally— that  is,  according  to  the  usual  course  of  things— 
from  such  breach  of  contract  itself,  or  such  as  may  reasonably  be  sup- 
posed to  have  been  in  the  contemplation  of  both  parties,  at  the_  time 
they  made  the  contract,  as  the  probable  result  of  the  breach  of  it. 

The  latter  part  of  this  rule,  as  above  quoted,  would  seem  to  cover 
all  cases  of  breach  of  contract;  for  it  must  be  presumed  that  the  par- 
ties would  reasonably  be  supposed  to  have  contemplated  that  the  party 
injured  by  the  breach  of  the  contract  would  sustain  such  damages  as 
would  fairly  and  substantially,  in  the  usual  course  of  things,  result 
from  such  breach.  (And  so  it  is  often  said  that,  in  an  action  for  a 
breach  of  contract,  the  damages  to  be  recovered  are  such  as  may  rea- 
sonably be  supposed  to  have  been  in  the  contemplation  of  both  parties 
when  they  made  it.  Under  this  rule  the  damages  which  may  be  re- 
covered in  an  action  for  the  breach  of  a  contract  are  som^etimes  more 
remote  and  far-reaching  than  those  recoverable  for  a  tort.     *     *     * 

In  the  case  of  Hobbs  v.  Railway  Co.,  supra,  the  learned  justices  state 
the  rule  in  case  of  breach  of  contract  in  more  concise  language.  They 
say:  "Such  damages  are  recoverable  as  a  man  when  making  the  con- 
tract would  contemplate  would  flow  from  a  breach  of  it."  Under  this 
rule  it  was  held  in  the  Hobbs  Case,  and  by  this  court  in  the  Walsh 
Case,  that  in  an  action  for  a  breach  of  contract  in  faihng  to  carry  a 
passenger  to  his  destination  damages  could  not  be  recovered  for  injury 


184  COMPENSATORY  DAMAGES.  (Part    5 

to  the  health,  annoyance,  and  vexation  of  mind  and  mental  distress, 
on  the  ground  that  such  damages  were  not  such  as  the  parties  making 
the  contract  would  contemplate  as  likely  to  result  from  its  breach. 

We  are  not  disposed  now  to  question  the  correctnessof  the  decision 
made  by  this  court  in  the  case  of  Walsh  v.  Railway  Co.,  supra,  limited 
as  that  case  was  to  an  action  solely  for  a  breach  of  contract.  In  such 
cases  the  willfulness  of  the  party  in  refusing  to  fulfill  the  contract  does 
not  in  any  way  change  the  rule  of  damages.  The  rule  as  to  the  dam- 
ages in  actions  upon  contract  is  the  same  whether  the  breach  be  by 
mistake,  pure  accident,  inability  to  perform  it,  or  whether  it  be  willful 
and  malicious.  The  motives  of  the  party  breaking  the  contract  are  not 
to  be  inquired  into.    1  Sedg.  Meas.  Dam.  439  et  seq.,  and  cases  cited. 

The  rules  which  limit  the  damages  in  actions  of  tort,  so  far  as  any 
general  rules  can  be  established,  are  in  many  respects  different  from 
those  in  actions  on  contract.  The  general  rule  is  that  the  party  who ' 
commits  a  trespass  or  other  wrongful  act  is  liable  for  all  the  direct  j 
injury  resulting  from  such  act,  although  such  resulting  injury  could 
not  have  been  contemplated  as  a  probable  result  of  the  act  done.  1 
Sedg.  Meas.  Dam.  130,  note.     *     *     * 

As  stated  by  Justice  Colt  in  the  case  of  Hill  v.  Winsor,  118  Mass. 
251 :  "It  cannot  be  said,  as  a  matter  of  law,  that  the  jury  might  not 
properly  find  it  obviously  probable  that  injury  in  some  form  would  be 
caused  to  those  who  were  at  work  on  the  fender  by  the  act  of  the  de- 
fendants in  running  against  it.  This  constitutes  negligence,  and  it  is 
not  necessary  that  the  injury,  in  the  precise  form  in  which  it  in  fact 
resulted,  should  have  been  foreseen.  It  is  enough  that  it  now  appears 
to  have  been  a  natural  and  probable  consequence." 

In  the  case  of  Bowas  v.  Tow  Line,  2  Sawy.  21,  Fed.  Gas.  No.  1,713, 
Judge  Hoffman,  speaking  of  the  rule  in  relation  to  damages  on  a 
breach  of  contract,  as  contrasted  with  the  rule  in  case  of  wrongs,  says : 
"The  effect  of  this  rule  is  more  often  to  limit  than  to  extend  the  lia- 
bility for  a  breach  of  contract,  although  sometimes,  when  the  special 
circumstances  under  which  the  contract  was  made  have  been  com- 
municated, damages  consequential  upon  a  breach  made  under  those 
circumstances  will  be  deemed  to  have  been  contemplated  by  the  parties, 
and  may  be  recovered  by  the  defendant.  But  this  rule,  as  Mr.  Sedg- 
wick remarks,  has  no  application  to  torts.  He  who  commits  a  tres- 
pass must  be  held  to  contemplate  all  the  damage  which  may  legiti- 
mately flow  from  his  illegal  act,  whether  he  may  have  foreseen  them  or 
not;  and  so  far  as  it  is  plainly  traceable  he  must  make  compensation 
for  it." 

The  justice  and  propriety  of  this  rule  are  manifest,  when  applied 
to  cases  of  direct  injury  to  the  person.  If  one  man  strike  another, 
with  a  weapon  or  with  his  hand,  he  is  clearly  liable  for  all  the  direct 
injury  the  party  struck  sustains  therefrom.  The  fact  that  the  result 
of  the  blow  is  unexpected  and  unusual  can  make  no  difference.  If  the 
wrongdoer  should  in  fact  intend  but  slight  injury,  and  deal  a  blow 


Ch.  1)  DIRECT    AND    CONSKQUENTIAL   DAMAGES.  ISd 

which  in  ninety-nine  cases  in  a  hundred  would  result  in  a  trifling  in- 
jury, and  yet  by  accident  produced  a  very  grave  one  to  the  person  re- 
ceiving it,  owing  either  to  the  state  of  health  or  other  accidental  cir- 
cumstances of  the  party,  such  fact  would  not  relieve  the  wrongdoer 
from  the  consequences  of  his  act.  The  real  question  in  these  cases  is, 
did  the  wrongful  act  produce  the  injury  complained  of?  and  not 
whether  the  party  committing  the  act  would  have  anticipated  the  re- 
sult. The  fact  that  the  act  of  the  party  giving  the  blow  is  unlawful 
renders  him  liable  for  all  its  direct  evil  consequences.     *     *     * 

In  the  case  at  bar  the  question  to  be  determined  is  whether  the  neg- 
ligent act  of  the  defendant's  employes  in  putting  the  plaintiffs  and 
their  child  off  the  train  in  the  nighttime,  at  the  place  where  they  did, 
was  the  direct  cause  of  the  injury  complained  of  by  the  plaintiffs,  or 
whether  it  was  only  a  remote  cause  for  which  no  action  lies.  We 
must  in  considering  this  case  take  it  for  granted  that  the  walk  from  the 
place  where  they  left  the  cars  to  Mauston  was  the  immediate  cause  of 
the  injury  complained  of,  and  the  negligence  of  the  defendant  in  put- 
ting them  off  the  cars  was  the  mediate  cause.  We  think  the  question, 
whether  there  was  any  negligence  on  the  part  of  the  plaintiffs  in  tak- 
ing the  walk,  was  properly  left  to  the  jury,  as  a  question  of  fact,  and 
they  found  that  they  were  guilty  of  no  negligence  on  their  part.  They 
found  themselves  placed  by  the  wrongful  act  of  the  defendant  where 
it  became  necessary  for  their  protection  to  make  the  journey. 

The  fact  that  there  was  a  station-house  near  by,  at  which  they  might 
have  found  shelter  until  another  train  came  by,  is  not  conclusive  that 
the  plaintiffs  were  negligent  in  the  matter.  They  were  landed  at  a 
place  where  they  could  not  see  it,  and  the  jury  have  found  that  under 
the  circumstances  they  were  not  guilty  of  negligence  in  not  finding  it. 
The  defendant  must,  therefore,  be  held  to  have  caused  the  plaintiffs 
to  make  the  journey  as  the  most  prudent  thing  for  them  to  do  under 
the  circumstances.  And,  we  think,  under  the  rules  of  law,  the  defend- 
ant must  be  liable  for  the  direct  consequence  of  the  journey.  Had  the 
defendant  wrongfully  placed  the  plaintiffs  off  the  train  in  the  open 
country,  where  there  was  no  shelter,  in  a  cold  and  stormy  night,  and, 
on  account  of  the  state  of  health  of  the  parties,  in  their  attempts  to 
find  shelter  they  had  become  exhausted  and  perished,  it  would  seem 
quite  clear  that  the  defendant  ought  to  be  liable.  The  wrongful  act 
of  the  defendant  would  be  the  natural  and  direct  cause  of  their  deaths, 
and  it  would  seem  to  be  a  lame  excuse  for  the  defendant,  that  if  the 
plaintiffs  had  been  of  more  robust  health  they  would  not  have  perished 
or  have  suffered  any  material  injury. 

The  defendant  is  not  excused  because  it  did  not  know  the  state  of 
health  of  Mrs.  Brown,  and  is  equally  responsible  for  the  consequence 
of  the  walk  as  though  its  employes  had  full  knowledge  of  that  fact. 
This  court  expressly  so  held  in  the  case  of  Stewart  v.  City  of  Ripon, 
38  Wis.  584,  and  substantially  in  the  case  of  Oliver  v.  Town  of  La 
Valle,  36  Wis.  592. 


186  COMPENSATORY  DAMAGES.  (Part   5 

Upon  the  findings  of  the  jury  in  this  case  it  appears  that  the  defend- 
ant was  guilty  of  a  wrong  in  putting  the  plaintiffs  off  the  cars  at  the 
place  they  did;  that  in  order  to  protect  themselves  from  the  effects 
of  such  wrong  they  made  the  walk  to  Mauston;  that  in  making  such 
walk  they  were  guilty  of  no  negligence,  but  were  compelled  to  make  it 
on  account  of  the  defendant's  wrongful  act;  and  that,  on  account  of 
the  peculiar  state  of  health  of  Mrs.  Brown  at  the  time,  she  was  injured 
by  such  walk.  There  was  no  intervening  independent  cause  of  the 
injury  other  than  the  act  of  the  defendant.  All  the  acts  done  by  the 
plaintiffs,  and  from  which  the  injury  flowed,  were  rightful  on  their 
part,  and  compelled  by  the  act  of  the  defendant.  We  think,  therefore, 
it  must  be  held  that  the  injury  to  Mrs.  Brown  was  the  direct  result 
of  the  defendant's  negligence,  and  that  such  negligence  was  the  prox- 
imate and  not  the  remote  cause  of  the  injury,  within  the  decisions 
above  quoted.  We  can  see  no  reason  why  the  defendant  is  not  equal- 
ly liable  for  an  injury  sustained  by  a  person  who  is  placed  in  a  danger- 
ous position,  whether  the  injury  is  the  immediate  result  of  a  wrong- 
ful act,  or  results  from  the  act  of  the  party  in  endeavoring  to  escape 
from  the  immediate  danger. 

When  by  the  negligence  of  another  a  person  is  threatened  with  dan- 
ger, and  he  attempts  to  escape  such  threatened  danger  by  an  act  not 
culpable  in  itself  under  the  circumstances,  the  person  guilty  of  the 
negligence  is  liable  for  the  injury  received  in  such  attempt  to  escape, 
even  though  no  injury  would  have  been  sustained  had  there  been  no  at- 
tempt to  escape  the  threatened  danger.  This  was  so  held,  and  we  think 
properly,  in  the  case  of  a  passenger  riding  upon  a  stagecoach,  who, 
supposing  the  coa;ch  would  be  overturned,  jumped  therefrom  and  was 
injured,  although  the  coach  did  not  overturn,  and  would  not  have  done 
so  had  the  passenger  remained  in  his  seat.  The  passenger  acted  upon 
appearances,  and,  not  having  acted  negligently,  it  was  held  he  could 
recover;  it  being  shown  that  the  coach  was  driven  negligently  at  the 
time,  which  negligence  produced  the  appearance  of  danger.  Jones  v. 
Boyce,  1  Starkie,  493.  The  ground  of  the  decisions  is  very  aptly  and 
briefly  stated  by  Lord  EHenborough  in  the  case  as  follows :  "If  I  place 
a  man  in  such  a  situation  that  he  must  adopt  a  perilous  alternative,  I 
am  responsible  for  the  consequences." 

So  in  the  case  at  bar  the  defendant,  by  its  negligence,  placed  the 
plaintiffs  in  a  position  where  it  was  necessary  for  them  to  act  to  avoid 
the  ..consequences  of  the  wrongful  act  of  the  defendant,  and,  acting 
with  ordinary  prudence  and  care  to  get  themselves  out  of  the  difficulty 
in  which  they  had  been  placed,  they  sustained  injury.  Such  injury 
can  be,  and  is,  traced  directly  to  the  defendant's  negligence  as  its  cause, 
and  it  is  its  proximate  cause,  within  the  rules  of  law  upon  that  subject. 
The  true  meaning  of  the  maxim,  causa  proxima,  non  remota,  spectatur, 
is  probably  as  well  defined  by  the  late  Chief  Justice  Dixon  in  the  case 
of  Railway  Co.  v.  Kellogg,  94  U.  S.  469,  24  L.  Ed.  256,  as  by  any  other 
judge  or  court.    He  states  it  as  follows :   "An  efficient  adequate  cause 


Ch.  1)  DIRECT    AND    CONSEQUENTIAL    DAMAGE3.  187 

being  found,  must  be  considered  the  true  cause,  unless  some  other  cause 
not  incident  to  it,  but  independent  of  it,  is  shown  to  have  intervened 
between  it  and  the  result."     *     *     *  " 


SCHUMAKER  v.  ST.  PAUL  &  D.  R.  CO. 

(Supreme  Court  of  Minnesota,  1891.    4G  Minn.  39,  48  N.  W.  559. 
12  L.   R.  A.   257.) 

The  complaint  averred  that  the  plaintiff  was  a  car-repairer  in  de- 
fendant's employ,  to  whom  the  defendant  owed  a  duty  of  furnishing 
transportation  from  a  point  along  the  line  of  the  road  where  he  had 
been  sent  to  repair  a  wrecked  caboose,  to  the  city  of  St.  Paul,  which  it 
failed  to  furnish,  so  that  he  was  compelled  to  walk  to  the  village  of 
White  Bear,  nine  miles  distant,  at  night  in  extremely  cold  and  danger- 
ous weather  and  that,  owing  to  his  unpreparedness  for  exposure  by 
reason  of  reliance  on  defendant's  performance  of  its  duty,  he  was  made 
sick,  contracted  rheumatism  and  has  been  permanently  injured. 

Collins,  J.  -^  *  *  *  The  important  question  in  this  case,  how- 
ever, is  whether,  from  the  complaint,  it  appears  that  defendant  is  liable 
for  the  injuries  which  resulted  from  plaintiff's  efforts  to  obtain  shelter 
and  food  on  the  occasion  referred  to;  the  former,  as  before  stated,  ar- 
.guing  that,  as  alleged,  they  are  too  remote,  and  are  not  the  proximate 
results  of  its  act.  *  *  *■  Jt  must  not  be  forgotten  that  the  grava- 
men of  the  action  is  the  negligence  and  carelessness  of  the  defendant 
in  leaving  plaintiff  at  a  place  where  he  could  not  procure  either  shelter 
or  food.  It  is  an  action  in  tort,  and  not  for  a  breach  of  contract.  It 
is  the  negligence  of  the  defendant  which  is  complained  of,  and  not  the 
breach  of  a  contract  to  return  the  plaintiff  to  St.  Paul  when  he  had 
performed  his  labor.  It  was,  of  course,  essential  that  the  plaintiff's  re- 
lation with  the  defendant  be  made  to  appear,  for,  unless  he  was  a  serv- 
ant to  whom  the  defendant  owed  a  duty,  there  couid  arise  no  liability 
by  reason  of  its  neglect  to  perform  that  duty.  The  relation  of  mas- 
ter and  servant  first  having  been  shown  to  exist,  the  law  fixes  the  duty 
of  the  former  towards  the  latter,  and  a  violation  of  this  duty  is  a 
wrong,  not  a  breach  of  the  contract.    This,  then,  is  an  action  in  which 

27  Tlie  leading  cases  upon  this  question  are  Ilobbs  v.  Railway  Co.,  L.  R.  10 
Q.  B.  Ill  (1S;75);  McMalion  v.  Field.  7  Q.  B.  Div.  .-.91  (ISSl);  Tullraan  P.  C. 
Co.  V.  I^arUcr,  4  Colo.  ;J-14,  34  Am.  Rep.  S9  (18TS);  Murdock  v.  B.  &  A.  R.  R. 
Co.,  133  Mjjss.  15.  43  Am.  Rep.  4S0  (1882);  Trie's  v.  St.  L.,  K.  C.  &  N.  Ry. 
Co..  74  Mo.  147,  41  Am.  Rrp.  305  (1881);  Cin.,  II.  &  I.  R.  R.  Co.  v.  Eaton, 
94  Ind.  474,  48  Am.  Rep.  179  (1SS4) ;  and  I.,  B.  &  W.  R.  v.  Birney,  71  111. 
391  (1874). 

One  placed  in  a  position  of  peril  should  protect  himself,  and  any  injuries 
sustained  in  an  attempt  to  do  so  are  the  proximate  result  of  the  wronjrful 
act  of  the  one  who  eximsed  him  to  the  peril.  Incalls  v.  Bills,  9  Mete.  (Mass.) 
1.  43  Am.  Dec.  .346  (1845);  Eastman  v.  Sanborn,  3  Allen  (Mass.)  594.  81  Am. 
Dec.  G77  (18G2) ;  Wilson  v.  Newport  IX)ck  Co.,  4  Hurl.  &  C.  232  (ISGG). 

2s  i»art  of  the  opinion  is  omitted,  and  the  statement  of  facts  is  rewritten. 


188  COMPENSATORY   DAMAGES.  (Part   5 

the  wrongdoer  is  liable  for  the  natural  and  probable  consequences  of 
its  negligent  act  or  omission ;  the  general  rules  which  limit  the  damages 
in  actions  of  tort  being,  in  many  respects,  different  from  those  in  actions 
on  contracts.  The  injury  must  be  the  direct  result  of  the  misconduct 
attributed,  and  the  general  rule  in  respect  to  damages  is  that  whoever 
commits  a  trespass  or  other  wrongful  act  is  liable  for  all  the  direct  in- 
jury resulting  therefrom,  although  such  resulting  injury  could  not  have 
been  contemplated  as  a  probable  result  of  the  act  done.  1  Sedg.  Dam. 
130,  note,  and  cases  cited;  CHfford  v.  Railroad  Co.,  9  Colo.  333,  13 
Pac.  219,  a  case  much  like  this.  He  who  commits  a  trespass  must  be 
held  to  contemplate  all  the  damages  which  may  legitimately  flow  from 
his  illegal  act,  whether  he  may  have  foreseen  them  or  not;  and,  so  far 
as  it  is  plainly  traceable,  he  must  make  compensation  for  the  wrong. 
The  damages  cannot  be  considered  too  remote  if,  according  to  the  usual 
experience  of  mankind,  injurious  results  ought  to  have  been  appre- 
hended. It  is  not  necessary  that  the  injury  in  the  precise  form  in  which 
it,  in  fact,  resulted,  should  have  been  foreseen.  It  is  enough  that  it 
now  appears  to  have  been  a  natural  and  probable  consequence.  Hill 
V.  Winsor,  118  Mass.  251. 

The  question  is  whether  the  negligent  act  complained  of — leaving 
the  plaintiff"  in  the  open  country  in  the  nighttime,  in  extremely  cold 
and  dangerous  weather,  a  long  distance  from  shelter  or  food — was  the 
direct  cause  of  the  injuries  mentioned  in  the  complaint,  or  whether  it 
was  a  remote  cause,  for  which  an  action  will  not  lie,  and  it  must  be 
taken  for  granted  that  the  walk  of  nine  miles  and  incident  exposure 
brought  about  the  alleged  sickness,  pain,  and  disability.  There  was  no 
intervening  independent  cause  of  the  injury,  for  all  of  the  acts  done  by 
the  plaintiff,  his  effort  to  seek  protection  from  the  inclement  and  dan- 
gerous weather,  were  legitimate,  and  compelled  by  defendant's  failure 
to  reconvey  him  to  the  city.  Had  he  remained  at  the  caboose,  and  lost 
his  hands,  or  his  feet,  or  perhaps  his  life,  by  freezing,  no  doubt  could 
exist  of  the  defendant's  liability.  It  must  not  be  permitted  to  escape 
the  consequences  of  its  wrong  because  the  injuries  were  received  in 
an  effort  to  avoid  the  threatened  danger,  or  because  they  differ  in 
form  or  seriousness  from  those  which  might  have  resulted  had  the 
plaintiff  made  no  such  effort.  An  efficient,  adequate  cause  being 
found  for  the  injuries  received  by  plaintiff,  it  must  be  considered  as 
the  true  cause,  unless  another,  not  incident  to  it,  but  independent  of 
it,  is  shown  to  have  intervened  between  it  and  the  result.  This  is 
the  substance  of  very  clear  statements  of  the  law  found  in  Kellogg 
V.  Railway  Co.,  26  Wis.  223,  7  Am.  Rep.  69,  and  in  Railway  Co.  v. 
Kellogg,  94  U.  S.  469,  24  L.  Ed.  256.  And  upon  the  point  now 
under  consideration  we  fail  to  distinguish  between  the  case  at  bar  and 
Brown  v.  Railway  Co.,  54  Wis.  342,  11  N.  W.  356,  911,  41  Am.  Rep. 
41 — an  action  brought  to  recover  for  like  damages  said  to  have  been 
caused  by  directing  passengers  to  alight  from  a  train  at  a  place  about 
three  miles  distant  from  their  destination.     At  all  events,  the  question 


Ch.  1)  DIRECT    AND    CONSEQUENTIAL   DAMAGES.  189 

as  to  what  was  the  proximate  cause  of  a  plaintiff's  injuries  is  usually 
one  to  be  determined  by  a  jury.  As  was  said  in  Railway  Co.  v.  Kel- 
logt,^,  supra,  the  true  rule  is  that  what  is  the  proximate  cause  of  an 
injury  is  ordinarily  one  fpr  a  jury.  It  is  not  a  question  of  science  or 
legal  knowledge.  It  is  to  be  determined  as  a  fact,  in  view  of  the  cir- 
cumstances attending  it.    *     *     *  *® 


XL  In   Contract. 


HADLEY  et  al  v.  BAXENDALE  et  al. 
(Court  of  Exchequer,  1854.    9  Exch.  341.) 


Es  '  """     


-\iC, 


The  plaintiffs  carried  on  an  extensive  business  as  millers  at  Glouces- 
ter;  and  on  the  11th  of  May  their  mill  was  stopped  by  a  breakage  ^Lufc^'^ 
of  the  crank  shaft,  by  which  the  mill  was  worked.  The  steam  engine  \^^  CJL» 
was  manufactured  by  Messrs.  Joyce  &  Co.,  the  engineers,  at  Green- 
wich, and  it  became  necessary  to  send  the  shaft  as  a  pattern  for  a  new 
one  to  Greenwich.  The  fracture  was  discovered  on  the  12th,  and  on 
the  13th  the  plaintiffs  sent  one  of  their  servants  to  the  office  of  the 
defendants,  who  are  the  well-known  carriers  trading  under  the  name 
of  Pickford  &  Co.,  for  the  purpose  of  having  the  shaft  carried  to 
Greenwich.    The  plaintiffs'  servant  told  the  clerk  that  the  mill  was  stop- 

20  See,  also,  Loeser  v.  Humphrey,  post,  p.  236;  Watson  v,  Dilts,  post,  p.  453; 
McPeek  v.  W.  U.  Tel.  Co.,  post,  p.  2G7. 

Among  the  great  multitude  of  cases  Involving  the  rule,  "Non  remota  causa, 
Bed  proxima.  spectatur,"  the  following  in  particular  are  instructive:  Blythe 
V.  D.  &  R.  G.  R.  Co.,  15  Colo.  333,  25  Pac.  702,  11  L.  R.  A.  G15.  22  Am.  St. 
Rep.  403  (ISl)o) ;  Lake  v.  Milliken,  62  Me.  240,  16  Am.  Rep.  456  (1S73) ;  Hill 
V.  Winsor,  118  Muss.  251  (1875);  Uvnn,  G.  &  E.  Co.  v.  Meriden  F.  I.  Co.,  158 
Mass.  570.  33  N.  E.  690,  20  L.  R.  A.  297,  35  Am.  St.  Rep.  540  (1893) ;  Cbristian- 
son  V.  Raihvav  Co.,  67  Minn.  94,  69  N.  W.  640  (1896);  Dow  v.  Winuiposaukee, 
G.  &  E.  Co.,  69  N.  H.  312,  41  Atl.  288,  42  L.  R,  A.  569,  76  Am.  St.  Rep.  173 
(1898) ;  Guille  v.  Swan,  19  Johns.  (N.  Y.)  381,  10  Am.  Dec.  234  (1822) ;  Ryan 
v.  N.  Y.  C.  R.  R.  Co.,  35  N.  Y.  210,  91  Am.  Dec.  49  (1866) ;  Gilson  v.  D.  &  H. 
Canal  Co.,  65  Vt.  213,  26  Atl.  70,  36  Am.  St.  Rep.  802  (1892);  Isham  v.  Dow, 
70  A't.  588,  41  Atl.  585,  45  L.  R.  A.  87,  67  Am.  St.  Rep.  691  (189S). 

For  typical  illustrulive  cases  from  the  English  reports,  see  Cobb  v.  G.  W. 
Rv.,  1  Q.  B.  459  (1S93) ;  Scholos  v.  N.  L.  Ry.,  21  Law  T.  835  (1S70) ;  City  of 
Lincoln,  59  Law  J.  Prob.  1  (18S9) ;  ILalestrap  v.  Gregory,  1  Q.  B.  561  (1895) ; 
Randall  v.  Newson,  2  Q.  B.  Div.  102  (1877);  Glover  v.  L.  &  S.  W.  Ry.,  L. 
R.  3  Q.  B.  25  (1867);  Burrows  v.  M.,  G.  &  C.  Co.,  L.  R.  7  Exch.  96  (1872); 
Burton  v.  Pinker  ton,  L.  R.  2  Exch.  340  (1867);  Sneesby  v.  L.  «Sc  Y.  R.v.  Co., 
L.  R.  1  Q.  B.  Div.  42  (1875) ;  Wilson  v  Newport  Dock  Co.,  L.  R.  1  Exch.  177 
(1860);  Priestly  v.  McLean,  2  Fost.  &  F.  288  (1860);  Clark  v.  Chambers,  3 
Q.  B.  Div.  327  (1878);  Greenland  v.  Chaplin,  5  Exch.  243  (1850);  Dixon  v. 
Bell,  5  >Laule  &  S.  198  (1816) ;  Jordin  v.  Crump,  8  Mees.  &  W.  782  (1841) ; 
Iliidge  V.  Goodwin,  5  Car.  &  P.  192  (1831);  Lynch  v.  Nurdin,  1  Q.  B.  29 
(1841);  Daniels  v.  Potter,  4  Car.  &  P.  262  (1830);  Mangan  v.  Atterton,  4  Hurl. 
&  C.  3.88  (I860):  Hill  v.  N.  R.  Co.,  9  Best.  &  S.  303  (1868):  Clark  v.  ChaDJfci>»s, 
3  Q.  B.  Div.  327  (1878) ;  Thompson  v.  Hopper,  6  El.  &  Bl.  937  (1850). 


190  COMPENSATORY  DAMAGES.  (Part    5 

ped,  and  that  the  shaft  must  be  sent  immediately;  and  in  answer  to 
the  inquiry  when  the  shaft  would  be  taken  the  answer  was  that  if  it 
was  sent  up  by  twelve  o'clock  any  day  it  would  be  delivered  at  Green- 
wich on  the  following  day.  On  the  following  day  the  shaft  was  taken 
by  the  defendants,  before  noon,  for  the  purpose  of  being  conveyed  to 
Greenwich,  and  the  sum  of  i2.  4s.  was  paid  for  its  carriage  for  the 
whole  distance.  At  the  same  time  the  defendants'  clerk  was  told  that 
a  special  entry,  if  required,  should  be  made,  to  hasten  its  delivery. 
The  delivery  of  the  shaft  at  Greenwich  was  delayed  by  some  neglect, 
and  the  consequence  was  that  the  plaintiffs  did  not  receive  the  new 
shaft  for  several  days  after  they  would  otherwise  have  done,  and  the 
working  of  their  mill  was  thereby  delayed,  and  they  thereby  lost  the 
profits  they  would  otherwise  have  received. 

On  the  part  of  the  defendants  it  was  objected  that  these  damages 
were  too  remote,  and  that  the  defendants  were  not  liable  with  respect 
to  them.  The  learned  judge  left  the  case  generally  to  the  jury,  who 
found  a  verdict  with  i25.  damages  beyond  the  amount  paid  into  court 
by  defendant,  which  was  i25. 

AivDERSONj  B.  We  think  that  there  ought  to  be  a  new  trial  in  this 
case ;  but  in  so  doing  we  deem  it  to  be  expedient  and  necessary  to  state 
explicitly  the  rule  which  the  judge,  at  the  next  trial,  ought,  in  our 
opinion,  to  direct  the  jury  to  be  governed  by  when  they  estimate  the 
damages. 

It  is,  indeed,  of  the  last  importance  that  we  should  do  this ;  for,  if 
the  jury  are  left  without  any  definite  rule  to  guide  them,  it  will,  in 
such  cases  as  these,  manifestly  lead  to  the  greatest  injustice.  The 
courts  have  done  this  on  several  occasions;  and  in  Blake  v.  Railway 
Co.,  21  L.  J.  O.  B.  237,  the  court  granted  a  new  trial  on  this  very 
ground,  that  the  rule  had  not  been  definitely  laid  down  to  the  jury  by 
the  learned  judge  at  nisi  prius.  "There  are  certain  established  rules," 
this  court  says,  in  Alder  v.  Keighley,  15  Mees.  &  W.  117,  "according 
to  which  the  jury  ought  to  find."  And  the  court  in  that  case  adds: 
"And  here  there  is  a  clear  rule  that  the  amount  w'hich  would  have  been 
received  if  the  contract  had  been  kept  is  the  measure  of  damages  if  the 
contract  is  broken."  Now,  we  think  the  proper  rule  in  such  a  case  as 
the  present  is  this:  Where  two  parties  have  made  a  contract  which 
one  of  them  has  broken,  the  damages  which  the  other  party  ought  to 
receive  in  respect  of  such  breach  of  contract  should  be  such  as  may 
fairly  and  reasonably  be  considered  either  arising  naturally — i.  e.,  ac- 
cording to  the  usual  course  of  things,  from  such  breach  of  contract  it- 
self— or  such  as  may  reasonably  be  supposed  to  have  been  in  the  con- 
templation of  both  parties  at  the  time  they  made  the  contract,  as  the 
probable  result  of  the  breach  of  it.  Now,  if  the  special  circumstances 
under  which  the  contract  was  actually  made  were  communicated  by 
the  plaintiffs  to  the  defendants,  and  thus  known  to  both  parties,  the 
damages  resulting  from  the  breach  of  such  a  contract,  which  they 
would  reasonably  contemplate,  would  be  the  amount  of  injury  which 


Ch.  1)  DIRECT    AND    CONSEQUENTIAL   DAMAGES.  191 

would  ordinarily  follow  from  a  breach  of  contract  under  these  special 
circumstances  so  known  and  communicated.  But,  on  the  other  hand, 
if  these  special  circumstances  were  wholly  unknown  to  the  party  break- 
ing the  contract,  he,  at  the  most,  could  only  be  supposed  to  have  had  in 
his  contemplation  the  amount  of  injury  which  would  arise  generally, 
and  in  the  great  multitude  of  cases  not  affected  by  any  special  circum- 
stances, from  such  a  breach  of  contract.  For,  had  the  special  circum- 
stances been  known,  the  parties  might  have  specially  provided  for  the 
breach  of  contract  by  special  terms  as  to  the  damages  in  that  case; 
and  of  this  advantage  it  would  be  very  unjust  to  deprive  them.  Now, 
the  above  principles  are  those  by  which  we  think  the  jury  ought  to  be 
guided  in  estimating  the  damages  arising  out  of  any  breach  of  con- 
tract. It  is  said  that  other  cases,  such  as  breaches  of  contract  in  the 
nonpayment  of  money,  or  in  the  not  making  a  good  title  to  land,  are 
to  be  treated  as  exceptions  from  this,  and  as  governed  by  a  conven- 
tional rule.  But  as,  in  such  cases,  both  parties  must  be  supposed  to  be 
cognizant  of  that  well-known  rule,  these  cases  may,  we  think,  be  more 
properly  classed  under  the  rule  above  enunciated  as  to  cases  under 
known  special  circumstances,  because  there  both  parties  may  reasonably 
be  presumed  to  contemplate  the  estimation  of  the  amount  of  "damages 
according  to  the  conventional  rule.  Now,  in  the  present  case,  if  we  are 
to  apply  the  principles  above  laid  down,  we  find  that  the  only  circum- 
stances here  communicated  by  the  plaintiffs  to  the  defendants  at  the 
time  the  contract  was  made  were  that  the  article  to  be  carried  was 
the  broken  shaft  of  a  mill,  and  that  the  plaintiffs  were  the  millers  of 
that  mill.  But  how  do  these  circumstances  show  reasonably  that  the 
profits  of  the  mill  must  be  stopped  by  an  unreasonable  delay  in  the  de- 
livery of  the  broken  shaft  by  the  carrier  to  the  third  person?  Suppose 
the  plaintiffs  had  another  shaft  in  their  possession,  put  up  or  putting 
up  at  the  time,  and  that  they  only  wished  to  send  back  the  broken 
shaft  to  the  engineer  who  made  it,  it  is  clear  that  this  would  be  quite 
consistent  with  the  above  circumstances,  and  yet  the  unreasonable  de- 
lay in  the  delivery  would  have  no  effect  upon  the  intermediate  profits 
of  the  mill.  Or,  again,  suppose  that,  at  the  time  of  the  delivery  to  the 
carrier,  the  machinery  of  the  mill  had  been  in  other  respects  defective, 
then,  also,  the  same  results  would  follow.  Here  it  is  true  that  the 
shaft  was  actually  sent  back  to  serve  as  a  model  for  a  new  one,  and 
that  the  want  of  a  new  one  was  the  only  cause  of  the  stoppage  of  the 
mill,  and  that  the  loss  of  profits  really  arose  from  not  sending  down 
the  new  shaft  in  proper  time,  and  that  this  arose  from  the  delay  in  de- 
livering the  broken  one  to  serve  as  a  model.  But  it  is  obvious  that  in 
the  great  multitude  of  cases  of  millers  sending  off  broken  shafts  to 
third  persons  by  a  carrier  under  ordinary  circumstances,  such  conse- 
quences would  not,  in  all  probability,  have  occurred;  and  these  spe- 
cial circumstances  were  here  never  communicated  by  the  plaintiffs  to 
the  defendants.  |It  follows,  therefore,  that  the  loss  of  profits  here 
cannot  reasonably  be  considered  such  a  consequence  of  the  breach  of 


192  COMPENSATORY  DAMAGES.  (Part   5 

contract  as  could  have  been  fairly  and  reasonably  contemplated  by  both 
the  parties  when  they  made  this  contract.  For  such  loss  would  neither 
have  flowed  naturally  from  the  breach  of  this  contract  in  the  great 
multitude  of  such  cases  occurring  under  ordinary  circumstances,  nor 
were  the  special  circumstances,  which,  perhaps,  would  have  made  it  a 
reasonable  and  natural  consequence  of  such  breach  of  contract,  com- 
municated to  or  known  by  the  defendants.  The  judge  ought,  there- 
fore, to  have  told  the  jury  that  upon  the  facts  then  before  them  they 
ought  not  to  take  the  loss  of  profits  into  consideration  at  all  in  estimat- 
ing the  damages.    There  must  therefore  be  a  new  trial  in  this  case. 


CORY  V.  THAMES  IRONWORKS  &  SHIPBUILDING  Co. 

(Ck)urt  of  Queen's  Bench,  1868,     L.  R.  3  Q.  B.  181.) 

The  plaintiffs  were  coal  merchants  and  ship  owners,  having  a  very 
large  import  trade  in  coal  from  Newcastle  and  other  places  into  the 
port  of  London.  The  defendants  were  iron  manufacturers  and  ship 
builders  in  London.  The  plaintiffs  had  introduced,  at  the  docks  where 
they  discharged  the  cargoes  of  coal  from  their  ships,  a  new  and  ex- 
peditious mode  of  unloading  the  coals  by  means  of  iron  buckets,  which 
were  worked  by  hydraulic  pressure  over  powerful  cranes,  and  the 
plaintiffs'. trade  having  considerably  increased  they  were  desirous  of 
improving  the  accommodation  offered  in  the  discharge  of  their  ves- 
sels by  the  above  mode;  this  the  defendants  were  not  aware  of. 

The  plaintiffs  purchased  the  derrick  for  the  purposes  of  their  busi- 
ness, in  order  to  erect  and  place  in  it,  as  they  in  fact  did,  large  hydraulic 
cranes  and  machinery,  such  as  they  had  previously  used  at  the  docks, 
and  by  means  of  these  cranes  to  trans-ship  their  coals  from  colliers  into 
barges  without  the  necessity  for  any  intermediate  landing,  the  derrick, 
for  this  purpose,  being  moored  in  the  river  Thames,  and  the  plaintiffs 
paying  the  conservators  of  the  river  a  large  rent  for  allowing  it  to  re- 
main there.  The  derrick  was  the  first  vessel  of  the  kind  that  had  ever 
been  built  in  this  country,  and  the  purpose  to  which  the  plaintiffs 
sought  to  apply  it  was  entirely  novel  and  exceptional.  No  hull  or  oth- 
er vessel  had  ever  been  fitted  either  by  coal  merchants  or  others  in  a 
similar  way  or  for  a  similar  purpose;  and  the  defendants  at  the  date 
of  the  agreement  had  notice  that  the  plaintiffs  purchased  the  derrick 
for  the  purpose  of  their  business,  considering  that  it  was  intended  to 
be  used  as  a  coal  store;  but  they  had  no  notice  or  knowledge  of  the 
special  object  for  which  it  was  purchased  and  to  which  it  was  actually 
applied. 

At  the  date  of  the  agreement  the  defendants  believed  that  the  plain- 
tiffs were  purchasing  the  derrick  for  the  purpose  of  using  her  in  the 
way  of  their  business  as  a  coal  store ;  but  the  plaintiffs  had  not  at  that 
time  any  intention  of  applying  the  derrick  to  any  other  purpose  than 


Ch.  1)  DIRECT    AND    CONSEQUENTIAL   DAMAGES.  193 

the  special  purpose  to  which  she  was  in  fact  afterwards  applied.  The 
plaintiffs  in  anticipation  of  the  delivery  of  the  hull  in  January,  1862, 
entered  into  a  contract  with  Sir  William  Armstrong-  for  the  construc- 
tion and  delivery  to  them  at  a  very  heavy  outlay  of  the  necessary  ma- 
chinery for  the  purpose  for  which  they  purchased  the  hull,  and  in  con- 
sequence of  the  delay  in  the  delivery  of  the  hull  by  the  defendants  the 
plaintiffs  were  prevented  from  taking  delivery  of  the  machinery  from 
Sir  William  Armstrong,  and  the  plaintiffs,  on  the  25th  of  July,  1862, 
paid  Sir  William  Armstrong  £3,000.,  the  interest  of  which  was  lost  to 
them.  The  plaintiffs  also  purchased,  at  a  large  cost,  two  steam  tugs 
to  be  used,  in  conjunction  with  the  hull,  in  towing  the  coal  barges  to 
and  from  the  same,  and  which  steam  tugs  were  comparatively  useless 
to  the  plaintiff's  during  the  time  in  which  the  hull  was  undelivered,  and 
the  interest  of  the  money  expended  on  the  same  was  lost  to  the  plain- 
tiffs ;  but  none  of  the  circumstances  were  known  to  the  defendants. 

If  the  defendants  had  delivered  the  hull  to  the  plaintiffs  in  proper 
time  the  plaintiff's  would  have  realized  large  profits  by  the  use  of  it  in 
the  aforesaid  manner,  and  they  were  put  to  great  inconvenience  and 
sustained  great  loss  owing  to  their  not  having  possession  of  the  hull 
to  meet  the  great  increase  in  their  trade.  The  plaintiffs  also  lost  £8. 
15s.  for  interest  upon  the  portion  of  the  purchase-money  of  the  hull 
paid  by  them  to  the  defendants  before  delivery. 

The  question  for  the  opinion  of  the  court  was,  whether  the  plaintiffs 
were  entitled  to  recover  against  the  defendants  the  whole  or  any,  and 
which  of  the  above  heads  of  damage? 

J.  Brown,  Q.  C,  for  the  plaintiffs.  J.  D.  Coleridge,  O.  C,  for  the 
defendants. 

CoCKBURN,  C.  J.  I  think  the  construction  which  J\Ir.  Coleridge 
seeks  to  put  upon  the  case  of  Hadley  v.  Baxendale,  9  Exch.  341,  33 
Law  J.  Exch.  179,  is  not  the  correct  construction  as  applicable  to  such 
a  case  as  this.  If  that  were  the  correct  construction,  it  would  be  at- 
tended with  most  mischievous  consequences,  because  this  would  fol- 
low, that'  whenever  the  seller  was  not  made  aware  of  the  particular 
and  special  purpose  to  which  the  buyer  intended  to  apply  the  thing 
bought,  but  thought  it  was  for  some  other  purpose,  he  would  be  re- 
lieved entirely  from  making  any  compensation  to  the  buyer,  in  case  the 
thing  was  not  delivered  in  time,  and  so  loss  was  sustained  by  the  buy- 
er ;  and  it  would  be  entirely  in  the  power  of  the  seller  to  break  his  con- 
tract with  impunity.  That  would  necessarily  follow,  if  Mr.  Coleridge's 
interpretation  of  Hadley  v.  Baxendale,  9  Exch.  341,  23  Law  J.  Exch. 
179,  was  the  true  interpretation.  My  Brother  Blackburn  has  point- 
ed out  that  that  is  not  the  true  construction  of  the  language  which  the 
court  used  in  delivering  judgment  in  that  case.  As  I  said  in  the  course 
of  the  argument,  the  true  principle  is  this,  that  although  the  buyer  may 
have  sustained  a  loss  from  the  nondelivery  of  an  article  which  he  in- 
tended to  apply  to  a  special  purpose,  and  which,  if  applied  to  that  spe- 
Gilb.Dam.— 13 


194  COMPENSATORY  DAMAGES.  (Part   5 

cial  purpose,  would  have  been  productive  of  a  larger  amount  of  profit, 
the  seller  cannot  be  called  upon  to  make  good  that  loss  if  it  was  not 
within  the  scope  of  his  contemplation  that  the  thing  would  be  applied 
to  the  purpose  from  which  such  larger  profit  might  result ;  and  al- 
though, in  point  of  fact,  the  buyer  does  sustain  damage  to  that  extent, 
it  would  not  be  reasonable  or  just  that  the  seller  should  be  called  upon 
to  pay  it  to  that  extent ;  but  to  the  extent  to  which  the  seller  contem- 
plated that,  in  the  event  of  his  not  fulfilling  his  contract  by  the  delivery 
of  the  article,  the  profit  which  would  be  realized  if  the  article  had  been 
delivered  would  be  lost  to  the  other  party,  to  that  extent  he  ought  to 
pay.  The  buyer  has  lost  the  larger  amount,  and  there  can  be  no  hard- 
ship or  injustice  in  making  the  seller  liable  to  compensate  him  in  dam- 
ages so  far  as  the  seller  understood  and  believed  that  the  article  would 
be  applied  to  the  ordinary  purposes  to  which  it  was  capable  of  being 
applied.  I  think,  therefore,  that  ought  to  be  the  measure  of  damages, 
and  I  do  not  see  that  there  is  anything  in  Hadley  v.  Baxendale,  9  Exch. 
341,  23  Law  J.  Exch.  179,  which  at  all  conflicts  with  this. 

Blackburn,  J.  I  am  entirely  of  the  same  opinion.  I  think  it  all 
comes  round  to  this :  The  measure  of  damages  when  a  party  has  not 
fulfilled  his  contract  is  what  might  be  reasonably  expected  in  the 
ordinary  course  of  things  to  flow  from  the  nonfulfilment  of  the  con- 
tract, not  more  than  that,  but  what  might  be  reasonably  expected  to 
flow  from  the  nonfulfilment  of  the  contract  in  the  ordinary  state 
of  things,  and  to  be  the  natural  consequences  of  it.  The  reason 
why  the  damages  are  confined  to  that  is,  I  think,  pretty  obvious, 
viz.  that  if  the  damage  were  exceptional  and  unnatural  damage, 
to  be  made  liable  for  that  would  be  hard  upon  the  seller,  because 
if  he  had  known  what  the  consequence  would  be  he  would  prob- 
ably have  stipulated  for  more  time,  or,  at  all  events,  have  used  great- 
er exertions  if  he  knew  that  that  extreme  mischief  would  follow 
from  the  nonfulfilment  of  his  contract.  On  the  other  hand,  if  the 
party  has  knowledge  of  circumstances  which  would  make  the  damages 
more  extensive  than  they  would  be  in  an  ordinary  case,  he  would  be 
liable  to  the  special  consequences,  because  he  has  knowledge  of  the 
circumstances  which  would  make  the  natural  consequences  greater  than 
in  the  other  case.  But  Mr.  Coleridge's  argument  would  come  to  this, 
that  the  damages  cottld  never  be  anything  but  what  both  parties  con- 
templated; and  where  the  buyer  intended  to  apply  the  thing  to  a  pur- 
pose which  would  make  the  damages  greater,  and  did  not  intend  to  ap- 
ply it  to  the  purpose  which  the  seller  supposed  he  intended  to  apply  it, 
the  consequence  would  be  to  set  the  defendant  free  altogether.  That 
would  not  be  just,  and  I  do  not  think  that  was  at  all  meant  to  be  ex- 
pressed in  Hadley  v.  Baxendale,  9  Exch.  341,  23  Law  J.  Exch.  179. 
Here  the  arbitrator  has  found  that  what  the  defendants  supposed  when 
they  were  agreeing  to  furnish  the  derrick  was  that  it  was  to  be  em- 
ployed in  the  most  obvious  manner  to  earn  money,  which  the  arbitra- 
tor assesses  at  £420.  during  the  six  months  delay;   and,  as  I  believe 


Ch.  1)  DIRECT    AND    CONRKQUENTIAL    DAMAGES.  195 

the  natural  consequence  of  not  delivering  the  derrick  was  that  that 
sum  was  lost,  I  think  the  plaintiffs  should  recover  to  that  extent. 

Mellor,  J.  I  am  entirely  of  the  same  opinion.  The  question  is, 
what  is  the  limit  of  damages  which  are  to  be  given  against  the  defend- 
ants for  the  breach  of  this  contract?  jThey  will  be  the  damages  natu- 
rally resulting,  and  which  might  reasonably  be  in  contemplation  of 
the  parties  as  likely  to  flow,  from  the  breach  of  such  contract.\  It  is 
not  because  the  parties  are  not  precisely  ad  idem  as  to  the  use  of  the 
article  in  question  that  the  defendants  are  not  to  pay  any  damages. 
Roth  parties  contemplated  a  profitable  use  of  the  derrick ;  and  when 
one  finds  that  the  defendants  contemplated  a  particular  use  of  it  as 
the  obvious  mode  in  which  it  might  be  used,  I  think  as  against  the 
plaintiffs  they  cannot  complain  that  the  damages  do  not  extend  beyond 
that  which  they  contemplated  as  the  amount  likely  to  result  from  their 
own  breach  of  contract. 

Judgment  for  the  plaintiffs  accordingly.*' 


HORNE  V.  MIDLAND  RY.  CO. 
(Court  of  Common  Pleas,  1872.     L.  R.  7  C.  P.  5S3.) 

The  plaintiffs,  who  were  under  a  contract  to  supply  a  quantity  of 
military  shoes  to  Hickson  &  Sons  in  London  (for  the  use  of  the  French 
army),  at  4s.  per  pair,  an  unusually  high  price,  to  be  delivered  there 
by  the  3d  of  February,  1871,  sent  the  shoes  to  the  defendants'  station 
at  Kettering  in  time  to  be  delivered  in  the  usual  course  in  the  evening 
of  that  day,  when  they  would  have  been  accepted  and  paid  for  by  the 
consignee;  and  the  station-master  had  notice  (which  for  the  purpose 
of  the  case  was  assumed  to  be  notice  to  the  company)  at  the  time  that 
the  plaintiffs  were  under  a  contract  to  deliver  the  shoes  by  the  3d,  and 
that,  unless  they  were  so  delivered  they  would  be  thrown  on  their 
hands,  but  no  notice  was  given  to  the  defendants  that  the  contract  with 
Hickson  &  Sons  was,  owing  to  very  exceptional  circumstances,  not  an 
ordinary  contract.  The  shoes  not  arriving  in  London  until  the  4th, 
Hickson  &  Sons  rejected  them,  and  the  plaintiffs  were  ultimately 
obliged  to  sell  them  at  a  loss  of  Is.  3d.  per  pair — 2s.  9d.  pei-  pair  being 
the  ordinary  market  value. 

WiLLES,  J.^^  This  case  raises  a  very  nice  question  upon  the  meas- 
ure of  damages  to  which  a  common  carrier  is  liable  for  a  breach  of  his 
contract  to  carry  goods.  It  would  seem  that  the  damages  which  he  is 
to  pay  for  a  late  delivery  should  be  the  amount  of  the  loss  which  in  the 
ordinary  course  of  things  would  result  from  his  neglect.  The  ordinary 
consequence  of  the  nondelivery  of  the  goods  here  on  the  3d  of  Febru- 

80  See.  also.  De  Mattos  v.  G.  E.  R.  S.  Co.,  1  Cababe  &  Ellis  4S9  (ISSo),  and 
Derkey  &  (Jay  F.  Co.  v.  Hascall.  post,  p.  549. 
3 J  Part  of  the  opinion  is  omitted. 


196  COMPENSATORY  DAMAGES.  (Part    5 

ary  would  be  that  the  consignee  might  reject  them,  and  so  they  would 
be  thrown  upon  the  market  generally,  instead  of  going  to  the  particu- 
lar purchaser;  and  the  measure  of  damages  would  ordinarily  be  in 
respect  of  the  trouble  to  which  the  consignor  would  be  put  in  disposing 
of  them  to  another  customer,  and  the  difference  between  the  value  of 
the  goods  on  the  3d  and  the  amount  realized  by  a  reasonable  sale. 
That  prima  facie  would  be  the  sum  to  be  paid,  in  the  absence  of  some 
notice  to  the  carrier  which  would  render  him  liable  for  something 
more  special.  These  consequences  would  refer  to  the  value  of  the 
goods  at  the  time  of  their  delivery  to  the  carrier,  the  goods  being 
consigned  to  an  ordinary  market  and  being  goods  in  daily  use  and  not 
subject  to  much  fluctuation  in  price.  In  the  present  case,  taking  2s. 
9d.  per  pair  as  the  value  of  the  shoes,  the  ordinary  damages  would  be 
the  trouble  the  plaintiffs  were  put  to  in  procuring  some  one  to  take 
them  at  that  price,  plus  the  difference,  if  any,  in  the  market  value  be- 
tween the  3d  and  the  4th  of  February.  I  find  nothing  in  the  case  to 
shew  that  there  was  any  diminution  in  the  value  between  those  days. 
The  plaintiffs'  claim,  therefore,  in  that  respect,  would  be  covered  by 
the  £20.  paid  into  court. 

But  they  claim  to  be  entitled  to  i267.  3s.  9d.  over  and  above  that 
sum,  on  the  ground  that  these  shoes  had  been  sold  by  them  at  4s.  a 
pair  to  a  consignee  who  required  them  for  a  contract  with  a  French 
house  for  supply  to  the  French  army,  which  price  he  would  have  been 
bound  to  pay  if  the  shoes  had  been  delivered  on  the  3d  of  February. 
The  special  price  which  the  consignee  had  agreed  to  pay  was  the  con- 
sequence of  the  extraordinary  demand  arising  from  the  wants  of  the 
French  army ;  and  the  refusal  of  the  consignee  to  accept  the  goods  on 
the  4th  was  caused  by  the  cessation  of  the  demand  for  shoes  of  that 
character  by  reason  of  the  war  having  come  to  an  end.  The  market- 
price,  therefore,  we  must  assume,  to  have  been  2s.  9d.  a  pair  when  the 
shoes  were  delivered  to  the  carriers ;  and  the  circumstance  which  caus- 
ed the  difference  was  that  the  plaintiffs  had  had  the  advantage  of  a 
contract  at  4s.  a  pair  before  the  extraordinary  demand  had  ceased. 
Was  that,  then,  an  exceptional  contract?  It  was  not,  I  take  it,  at  the 
time  the  contract  was  entered  into ;  but  it  was  at  the  time  the  shoes 
were  delivered  to  the  carriers.  The  plaintiff  sustained  a  loss  of  Is. 
3d.  a  pair  on  the  4,595  pairs  of  shoes  which  they  failed  to  deliver  in 
pursuance  of  their  contract.  It  was,  so  to  speak,  a  penalty  thrown 
upon  them  by  reason  of  the  breach  of  contract.  In  that  point  of  view, 
the  contract  was  an  exceptional  one  at  the  time  the  shoes  were  de- 
livered to  the  carriers;  and  they  ought  to  have  been  informed  of  the 
fact  that  by  reason  of  special  circumstances  the  sellers  would,  if  the 
delivery  had  taken  place  in  time,  have  been  entitled  to  receive  from  the 
consignee  a  larger  price  for  the  shoes  than  they  would  have  been 
entitled  to  in  the  ordinary  course  of  trade.  It  must  be  remembered 
that  we  are  dealing  with  the  case  of  a  common  carrier,  who  is  bound  to 
accept  the  goods.     It  would  be  hard  indeed  if  the  law  were  to  fix  him 


Ch.  1)  DIRECT    AND    CONSEQUENTIAL    DAMAGES.  197 

with  the  further  liability  which  is  here  sought  to  be  imposed  upon 
him,  because  he  has  received  a  notice  which  does  not  disclose  the 
special  and  exceptional  consequences  which  will  or  may  result  from  a 
delayed  delivery.  1 1  think  the  law  in  this  respect  has  gone  quite  as  far 
as  good  sense  warrants.  The  cases  as  to  the  measure  of  damages  for 
a  tort  do  not  apply  to  a  case  of  contract.  That  was  suggested  in  a  case 
in  Bulstrode — Everard  v.  Hopkins,  2  Bulst.  332 — but  the  notion  was 
corrected  in  Hadley  v.  Baxendale,  9  Exch.  341,  23  Law  J.  Exch.  179. 
The  damages  are  to  be  limited  to  those  that  are  the  natural  and  ordina- 
ry consequences  which  may  be  supposed  to  have  been  in  the  contempla- 
tion of  the  parties  at  the  time  of  making  the  contract.)  I  go  further, 
I  adhere  to  what  I  said  in  Saw-Mill  Co.  v.  Nettleship,  L.  R.  3  C.  P. 
499,  at  page  509,  viz.  that  "the  knowledge  must  be  brought  home  to 
the  party  sought  to  be  charged,  under  such  circumstances  that  he 
must  know  that  the  person  he  contracts  with  reasonably  believes  that 
he  accepts  the  contract  with  the  special  condition  attached  to  it."  Was 
there  any  notice  here  that  the  defendants  would  be  held  accountable 
for  the  particular  damages  now  claimed?  In  the  ordinary  course  of 
things,  the  value  of  the  shoes  was  2s.  9d.  a  pair  at  the  time  they  were 
delivered  to  the  defendants  to  be  carried.  There  was  no  change  in  their 
market  value  between  the  3d  of  February  and  the  4th ;  and  no  notice 
to  the  carriers  that  the  consignees  had  contracted  to  pay  for  them  the 
exceptional  price  of  4s.  a  pair.  The  defendants  had  no  notice  of  the 
penalty,  so  to  speak,  which  a  delay  in  the  delivery  would  impose  upon 
the  plaintiffs.  It  would,  as  it  seems  to  me,  be  an  extraordinary  result 
to  arrive  at,  to  hold  that  a  mere  notice  to  the  carriers  that  the  shoes 
would  be  thrown  upon  the  hands  of  the  consignors  if  they  did  not 
reach  the  consignees  by  the  3d  of  February,  should  fix  them  with  so 
large  a  claim,  by  reason  of  facts  which  were  existing  in  the  minds  of 
the  consignors,  but  were  not  communicated  to  the  carriers  at  the  time. 

:<:        *        4^ 


GREBERT-BORGNIS  v.  J.  &  W.  NUGENT. 

(Ck)urt  of  Appeal,  1S85.     L.  R.  15  Q.  B.  Div.  85.) 

Brktt,  M.  R.^*  *  *  *  'pj^g  plaintiff  came  over  and  saw  the  de- 
fendants in  this  country,  and  informed  them  that  he  was  about  to 
complete  or  had  completed  a  contract  with  a  French  customer  in  Paris, 
and  that  he  wished  the  defendants  to  supply  skins  which  would  en- 
able him  to  fulfill  the  contract  with  his  Paris  customer;  and  that  he 
would  send  them  the  particulars  for  that  purpose.  Therefore,  when 
the  plaintiff  sent  over  to  the  defendants  the  order  to  manufacture  and 
deliver  skins  of  different  specialties  as  to  quality  and  shape  and  other 
matters,  at  different  prices,  and  to  be  delivered  in  lots  at  different 

32  Part  of  the  opinion  is  omitted. 


198  COMPENSATORY   DAMAGES.  (Part    5 

times,  it  corresponded  in  truth  with  a  contract  which  at  that  time  was 
then  in  contemplation  if  not  complete  in  fact  with  the  French  customer 
and  the  defendants  really  knew  as  matter  of  business  and  for  all  prac- 
tical purposes  that  the  contract  which  the  plaintiff  had  made  with  the 
French  customer  was  substantially  the  same  which  he  was  making 
with  the  defendants,  though  of  course  with  this  difference,  that,  as  a 
matter  of  business,  the  plaintiff  would  be  selling  to  the  Frenchman 
at  a  price  greater  than  that  which  he  was  giving  to  the  defendants. 
That  is  the  extent  of  the  knowledge  which  the  defendants  had  of  the 
contract  by  the  plaintiff  with  his  French  customer.  It  is  not  the  case 
of  a  merchant  ordering  goods  from  the  manufacturer  here  to  be  sent 
and  resold  abroad,  which  of  itself  would  tell  the  manufacturer  that  the 
order  was  for  goods  to  be  resold  at  a  profit.  It  is  more  than  that.  It 
is,  that  he,  the  plaintiff,  was  under  a  specific  and  particular  contract 
with  a  particular  person,  and  that  the  skins  were  to  enable  the  plain- 
tiff to  fulfil  that  contract. 

Now,  the  defendants  broke  their  contract  with  the  plaintiff,  and 
thereby'-  disabled  the  plaintiff  from  fulfilling  his  contract,  beyond  a 
certain  amount,  with  the  French  customer.  Now,  what  were  the  dam- 
ages to  which,  under  those  circumstances,  the  plaintiflF  was  entitled? 
There  was  no  market  for  these  goods.  If  there  had  been  a  market 
for  them,  what  the  plaintiff  would  have  been  bound  to  do  would  have 
been  to  go  into  the  market  and  buy  the  goods  and  so  supply  his 
French  customer;  and  if  the  market  price  was  above  the  contract  price 
he  would  get  the  difference  from  the  defendants.  There  was  no  mar- 
ket, therefore  the  first  head  of  damage  is  perfectly  clear;  he  lost  the 
profit  of  5  francs  per  skin  which  he  otherwise  would  have  made.  This 
has  not  been  disputed  by  the  learned  counsel  on  behalf  of  the  defend- 
ants, and,  therefore,  the  plaintiff's  right  to  the  iSi.  is  practically  ad- 
mitted. 

But  when  the  plaintiff  says,  "I  have  in  fact  not  only  lost  the  profit 
which  I  should  have  made,  but  I  have  been  made  to  pay  £28.  more 
on  account  of  my  breach  of  contract  with  my  French  customer."  Then 
comes  the  question,  can  he  recover  from  the  defendants  that  sum  or 
any  loss  in  respect  of  damages  which  he  has  had  to  pay  to  his  French 
customer  ? 

Now,  the  cases  which  have  been  cited  are  supposed  to  be  cases  which 
carry  out  the  principle  laid  down  in  Hadley  v.  Baxendale,  9  Exch.  341, 
23  L.  J.  (Exch.)  179.  And  what  I  take  to  be  the  result  of  them  is  this : 
Where  a  plaintiff  under  such  circumstances  as  the  present  is  seeking 
to  recover  for  some  liability  which  he  has  incurred  under  a  contract 
made  by  him  with  a  third  person,  he  must  shew  that  the  defendant, 
at  the  time  he  made  his  contract  with  the  plaintiff,  knew  of  that  con- 
tract, and  contracted  on  the  terms  of  being  liable  if  he  forced  the  plain- 
tiff to  a  breach  of  that  contract.  If  such  subcontract  was  not  made 
known  to  him  at  all  the  defendant  cannot  be  made  liable  for  what  the 
plaintiff  has  had  to  pay  under  it.    If  there  be  no  market  for  the  goods. 


Ch.  1)  DIRECT    AND    CONSEQUENTIAL    DAMAGES. 


199 


then  the  subcontract  by  the  plaintiff,  although  not  brought  to  the 
knowledge  of  the  defendant,  the  original  vendor,  may  be  put  in  evi- 
dence in  order  to  shew  what  was  the  real  value  of  the  goods,  and  so 
enable  the  plaintiff  to  recover  the  difference  between  the  contract  price 
and  the  real  value. 

But  where  the  subcontract  was  fully  made  known  to  him  in  all  its 
terms,  in  my  opinion  the  defendant  would  be  liable;  and  the  proper 
inference,  and  one  which  the  jury  might  infer,  would  be  that  he  had 
contracted  with  the  plaintiff  upon  the  terms  that  if  he  broke  his  con- 
tract he  should  be  liable  for  all  the  consequences  of  a  failure  by  the 
plaintiff  to  perform  his  subcontract. 

Still,  however,  it  seems  to  me,  according  to  what  has  been  decided, 
that  the  original  vendor,  in  such  a  case  as  this,  is  only  liable,  in  the 
case  of  a  breach  of  contract,  for  the  natural  consequences  of  so  much 
of  the  subcontract  as  was  made  known  to  him.  If  he  were  told,  for 
instance,  that  the  contract  was  that  if  I  do  not  supply  my  purchaser 
with  the  goods  which  I  am  ordering  for  him,  my  vendor,  I  shall  have 
to  pay  my  purchaser  £4.  a  ton  for  every  ton  which  I  do  not  deliver, 
then,  if  there  be  a  breach  of  the  contract,  the  original  vendor  would 
have  to  pay  the  £4.  a  ton.  But  supposing  there  was  in  the  subcontract 
between  myself  and  my  purchaser  not  only  a  stipulation  that  I  should 
pay  £4.  a  ton,  but,  besides  that,  I  should  be  liable  to  a  penalty  of  £o. 
a  day,  although  that  is  in  the  subcontract,  yet  if  that  part  of  it  was 
not  made  known  to  the  original  vendor,  then  for  that  reason  and  be- 
cause it  is  not  a  natural  consequence  of  his  bargain,  he  would  not  be 
liable  to  pay  the  penalty  of  £5.  a  day.  It  seems  to  me  that  the  cases 
establish  that  the  original  vendor  is  to  be  liable  to  so  much  of  the  sub- 
contract as  was  made  known  to  him,  but  only  to  that  extent.     *     *     * 

Judgment  for  £62.  affirmed. 


SMEED  v.   FOORD. 
(Court  of  Queen's  Beneli,  1859.     1  El.  &  El.  602.) 

The  defendant,  on  July  28,  1856,  sold  and  agreed  to  deliver  to  the 
plaintiff,  a  farmer,  a  threshing  machine  and  engine  by  August  14, 
1856.  The  plaintiff's  wheat  was  ready  for  threshing  on  such  date,  and 
his  custom,  as  defendant  knew,  was  to  thresh  his  wheat  in  the  field. 
The  machine  was  not  delivered  until  September  14th.  In  the  mean- 
time, the  wheat  had  become  much  deteriorated  by  exposure  to  wet 
weather  and  had  to  be  cut  and  stacked.  On  receipt  of  the  machine, 
the  plaintiff  immediately  threshed.  It  was  then  found  necessary  to 
dry  the  wheat  in  a  kiln,  and  a  sale  was  had  at  a  lower  price  than  would 
have  been  obtained  in  August,  as  the  market  price  of  wheat  had  fallen. 

Lord  Campbell,  C.  J.  In  this  case  there  was  an  express  contract 
that  the   machine  should  be  delivered  on  a  fixed  day.     It  was  not, 


200  COMPENSATORY  DAMAGES.  (Part    5 

in  fact,  delivered  till  long  after  that  day.  And  the  question  is,  wheth- 
er the  plaintiff  is  entitled,  in  consequence,  to  recover  substantial  or  on- 
ly noniinal  damages.  The  rule  upon  this  subject  is  to  be  found  in 
Hadley  v.  Baxendale,  9  Exch,  341,  where  it  is  laid  down,  in  accordance 
with  the  Code  Napoleon,  with  Pothiej-,  with  Chancellor  Kent,  and  with 
all  other  authorities,  that  the  damages  which  one  party  to  a  contract 
ought  to  receive,  in  respect  of  a  breach  of  it  by  the  other,  are  such 
as  either  arise  naturally,  that  is,  in  the  usual  course  of  things,  from 
the  breach  itself,  or  such  as  may  reasonably  be  supposed  to  have  been 
contemplated  by  the  parties,  when  making  the  contract,  as  the  proba- 
ble result  of  the  breach.  I  do  not  say  how  far  this  rule  was  applicable 
to  the  particular  circumstances  of  that  case;  but,  as  an  abstract  rule  of 
law,  I  think  it  is  correct.  Applying  it  to  the  facts  of  the  present  case, 
we  must  hold  that  the  plaintiff  is  entitled  to  recover  all  losses  which 
naturally  arose,  or  which  were  contemplated  by  him  and  the  defendant 
as  likely  to  arise,  from  the  delay  in  the  delivery  of  the  machine.  Now 
the  plaintiff,  a  large  farmer,  known  to  the  defendant  to  be  such,  wanted 
a  machine  to  thresh  his  wheat:  the  defendant  agreed  to  supply  him 
with  one  on  14th  August  1856,  about  the  time  when  wheat  would  be 
expected  to  be  ripe.  The  defendant  knew  that  the  plaintiff  required 
the  machine  for  the  purpose  of  threshing  wheat  in  the  field.  Then, 
was  it  not  contemplated  by  the  parties,  that  if  the  machine  was  not 
delivered  by  the  time  fixed,  damage  to  the  wheat  would,  in  all  proba- 
bility, be  the  result;  particularly  in  such  a  variable  climate  as  this? 
Owing  to  the  nondelivery  of  the  machine,  the  wheat  was  stacked,  and 
afterwards  damaged  by  the  rain  which  ensued.  This  injury,  and  the 
loss  and  expense  which  it  involved,  were  the  natural  results  of  the  de- 
fendant's delay.  They  were  also  results  which  the  parties  must  have 
foreseen.  But  it  is  said  that  the  plaintiff  ought  to  have  hired  or  bor- 
rowed another  machine.  Had  it  been  proved  that  he  could  have  done 
so,  the  case  might  have  been  different.  No  such  evidence,  however, 
was  given.  On  the  other  hand,  there  was  evidence  that  the  plaintiff 
did  apply  for  a  machine  in  one  quarter,  but  in  vain.  Moreover,  the 
defendant  led  him  on  from  day  to  day  to  suppose  that  the  machine 
which  he  had  ordered  would  be  speedily  delivered  to  him.  The  plain- 
tiff', therefore,  being  in  no  default,  I  think  that  he  is  entitled  to  substan- 
tial damages  in  respect  of  all  those  items  of  loss  which  resulted  from 
the  fall  of  rain.  He  is  not,  however,  in  my  opinion,  entitled  to  any 
damages  in  respect  of  the  fall  in  the  market  price  of  the  wheat;  for 
that  could  not  have  been  in  the  contemplation  of  the  parties  when  the 
contract  was  made ;  nor  can  it  be  said  to  have  been  in  any  way  the 
natural  result  of  the  defendant's  breach  of  contract.  For  aught  that 
the  parties  knew,  or  that  might  naturally  have  happened,  the  price 
might  have  risen  instead  of  fallen.^' 

33  Erie.  J.,  in  Randall  v.  Raper,  El.,  Bl.  &  El.  S4  (1S.5S),  said: 
"The  question  is,  what  amount  of  damages  is  to  be  given  for  the  breach 
of  this  warranty?     The  warranty  is,  that  the  barley  sold  should  be  chevalier 


Ch.  1)  DIRECT    AND    CONSEQUENTIAL    DAMAGES.  201 

LEONARD  V.  NEW  YORK,  A.  &  B.  ELECTRO- 
MAGNETIC  TELEGRAPH    CO. 

(CJourt  of  Appeals  of  New  York,  1870.     41  N.  Y.  544,  1  Am.  Rep.  44G.) 

On  September  24, 1856,  Magill  &  Pickering,  acting  for  plaintiffs,  de- 
livered to  the  Western  Union  Company  at  Chicago,  a  dispatch  to  be 
sent  to  Oswego,  as  follows :  "D.  B.  Staats,  Oswego :  Send  5,000  sacks 
of  salt  immediately.  Magill  &  Pickering."  The  dispatch  was  sent 
by  the  Western  Union  Company  to  Buffalo,  and  there  delivered  to  the 
agent  of  the  defendants.  It  was  transmitted  by  the  defendants  over 
iheir  Hne  to  Syracuse;  and  in  transcribing  it  at  this  point  for  the  pur- 
pose of  delivering  to  the  Oswego  line,  the  agent  of  defendants  negli- 
gently wrote  the  word  "casks"  in  place  of  "sacks,"  so  that  when  the 
message  was  delivered  to  the  Oswego  Hne,  and  by  that  line  to  Staats, 
it  read  as  follows:  "D.  B.  Staats,  Osw^ego:  Send  5,000  casks  of  salt 
immediately.     Magill  &  Pickering." 

The  term  "sacks"  in  the  salt  trade  designates  fine  salt  in  sacks  con- 
taining fourteen  pounds,  and  the  term  "casks"  designates  coarse  salt  in 
packages  containing  not  less  than  three  hundred  and  twenty  pounds. 

Staats  received  the  telegram  on  the  afternoon  of  September  24,  1856, 
and  that  evening  or  the  next  morning,  chartered  the  schooner  S.  H. 
Lathrop,  to  take  the  salt  to  Chicago,  and  shipped  by  her  2,733-°V28o 
barrels  of  coarse  salt.  The  cargo  of  salt  arrived  at  Chicago  on  Oct. 
15.  There  was  no  market  for  it  at  Chicago,  and  Magill  &  Pickering 
stored  it  at  the  expense  of  the  plaintiffs  until  1857,  when  it  was  sold 

barley.  The  natural  consequence  of  the  breach  of  such  a  warranty  is  that, 
the  barley  which  has  been  delivered  having  been  sown  and  not  being  chevalier 
barley,  an  inferior  crop  has  been  produced.  This  damage  naturally  results 
from  the  breach  of  the  warranty ;  and  the  ordinai-y  measure  of  it  would  be 
the  difference  in  value  between  the  inferior  crop  producetl  and  that  which 
would  have  been  produced  from  cheA^alier  barley ;  that  is  not  inconsistent  with 
Hadley  v.  Baxendale,  9  Exch.  341.  But  then  it  is  said  that  here  the  plain- 
tiffs have  made  no  actual  payment;  so  that  if  they  recovered  such  damages 
in  this  action,  they  might  put  them  into  their  own  pockets  without  paying 
the  subvendees.  But  I  think  that  the  true  rule  is  that  a  liability  to  loss  is 
sufficient  to  give  the  party  liable  a  title  to  recover." 

Subsequent  English  cases  involving  the  principle  of  Hadley  v.  Baxen- 
dale are,  among  others,  in  addition  to  those  reprinted  herein,  Jameson  v. 
Midland  Ry.  Co.,  50  Law  T.  420  (1SS4) ;   Schulze  &  Co.  v.  G.  E.  Ry.,  L.   R. 

19  Q.  B.  Div.  30  (18S7) ;  Thol  v.  Henderson.  S  Q.  B.  Div.  457  (ISSl) ;  Candy 
v.  Midland  Ry.  Co.,  38  Law  T.  220  (1878) ;  Skinner  v.  City  of  L.  M.  I.  Co., 
L.  R.  14  Q.  B.  Div.  882  (1885) ;  Welch  v.  Anderson,  Gl  L.  ,T.  Q.  B.  167  (1891) ; 
Simpson  v.  L.  &  N.  W.  Ry.,  1  Q.  B.  Div.  274  (1870);  Wilson  v.  G.  I.  S.  C. 
Co.,  47  L.  J.  Q.  B.  239  (1877);  Wilson  v.  Newport  Dock  Co.,  L.  R.  1  Exch. 
177  (1800) ;  Gee  v.  Lancashire  &  Y.  Ry.  Co.,  0  Hurl.  &  N.  211  (1800)  ;  Hobbs 
V.  L.  &  S.  W.  Ry.  Co.,  L.  R.  10  Q.  B.  Ill  (1875);  Hammond  &  Co.  v.  Bussey, 

20  Q.  B.  Div.  79  (1S87) ;  Portman  v.  Middleton,  4  C.  B.  (N.  S.)  322  (1858); 
Walker  v.  Moore.  10  B.  &  C.  410  (1829);  B.  C  S.  M.  Co.  v.  Nettleship,  L. 
R.  3  C.  P.  499  (18GS);  Hinde  v.  Liddell.  L.  R.  10  Q.  B.  205  (187.5);  Elbinger- 
Actien-Gesellschaft  v.  Armstrong,  L.  R.  9  Q.  B.  473  (1874) ;  Borries  v.  Hutch- 
inson, 18  C.  3.  (N.  S.)  445  (1805). 


202  COMPENSATORY   DAMAGES.  (Part    5 

for  less  than  one  dollar  per  barrel.     The  salt  was  worth  at  the  time 
of  its  shipment  in  Oswego,  $1.60  per  barrel.^* 

Earl,  C.  J.^"  *  *  *  It  is  also  claimed  that  the  referee  adopted 
an  erroneous  rule  of  damages,  and  that  the  plaintiffs  should  not  in  any 
event  have  recovered  more  than  they  actually  disbursed  for  freight  on 
the  salt  to  Chicago.  The  measure  of  damages  to  be  applied  to  cases 
as  they  arise  has  been  a  fruitful  subject  of  discussion  in  the  courts. 
The  difficulty  is  not  so  much  in  laying  down  general  rules,  as  in  ap- 
plying them.  The  cardinal  rule  undoubtedly  is,  that  the  one  party 
shall  recover  all  the  damages  which  has  been  occasioned  by  the  breach 
of  contract  by  the  other  party.  But  this  rule  is  modified  in  its  appli- 
cation by  two  others.  The  damages  must  flow  directly  and  naturally 
from  the  breach  of  contract,  and  they  must  be  certain,  both  in  their 
nature  and  in  respect  to  the  cause  from  which  they  proceed.  Under 
this  latter  rule  speculative,  contingent  and  remote  damages,  which  can- 
not be  directly  traced  to  the  breach  complained  of,  are  excluded.  Un- 
der the  former  rule,  such  damages  are  only  allowed  as  may  fairly  be 
supposed  to  have  entered  into  the  contemplation  of  the  parties  when 
they  made  the  contract,  as  might  naturally  be  expected  to  follow  its 
violation.  It  is  not  required  that  the  parties  must  have  contemplated 
the  actual  damages  which  are  to  be  allowed.  But  the  damages  must 
be  such  as  the  parties  may  fairly  be  supposed  to  have  contemplated 
when  they  made  the  contract.  Parties  entering  into  contracts  usually 
contemplate  that  they  will  be  performed,  and  not  that  they  will  be  vio- 
lated. They  very  rarely  actually  contemplate  any  damages  which 
would  flow  from  any  breach,  and  very  frequently  have  not  sufficient 
information  to  knOw  what  such  damages  would  be.  As  both  parties 
are  usually  equally  bound  to  know  and  be  informed  of  the  facts  per- 
taining to  the  execution  or  breach  of  a  contract  which  they  have  en- 
tered into,  I  think  a  more  precise  statement  of  this  rule  is,  that  a  party 
is  liable  for  all  the  direct  damages  which  both  parties  to  the  contract 
would  have  contemplated  as  flowing  from  its  breach,  if  at  the  time  they 
entered  into  it  they  had  bestowed  proper  attention  upon  the  subject, 
and  had  been  fully  informed  of  the  facts.  In  this  case  then,  in  what 
may  properly  be  called  the  fiction  of  law,  the  defendant  must  be  pre- 
sumed to  have  known  that  this  dispatch  was  an  order  for  salt,  as  an 
article  of  merchandise,  and  that  the  plaintiff  would  fill  the  order  as 
delivered;  and  that  if  the  salt  w^as  shipped  to  Chicago,  it  would  be 
shipped  there  as  an  article  of  merchandise,  to  be  sold  in  the  open  mar- 
ket. And  the  market  price  in  Chicago  being  less  than  the  market  price 
in  Oswego,  that  they  would  lose  the  cost  of  transportation,  and  the 
difference  between  the  market  price  at  Chicago  and  the  market  price 
at  Oswego.  I  think  therefore  that  the  rule  of  damages  adopted  by  the 
referee  was  sufficiently  favorable  to  the  defendant.    The  damages  al- 

3  4  The  statement  of  facts  is  abridged  from  that  of  the  original  report. 
35  Only  a  part  of  the  opinion  of  Earl,  C.  J.,  is  here  given.     The  opinions  of 
the  other  judges  are  omitted. 


Ch.  1)  DIUECT    AND    CONSI-^QUKNTIAL    DAMAGES. 


203 


lowed  were  certain,  and  they  were  the  proximate,  direct  result  of  the 
breach. 

I  do  not  think,  under  the  facts  of  this  case,  that  the  plaintiffs,  when 
they  found  the  state  of  the  Chicago  market,  were  bound  to  re-ship 
this  salt  to  Oswego,  For  any  thing  that  appears  in  this  case,  the  cost 
of  transportation  to  Oswego  would  have  been  equal  to  the  difference 
in  the  market  price  between  the  two  places.  Then  there  was  the  risk 
of  the  lake  transportation  at  that  season  of  the  year,  and  the  uncer- 
tainty in  the  Oswego  market  when  the  salt  should  again  be  landed 
there.  If  the  plaintiff  had  shipped  it,  and  it  had  been  lost  upon  the 
lake,  the  total  loss  would  not  have  been  chargeable  to  the  defendant. 
By  the  wrongful  act  of  the  defendant,  the  salt  had  been  placed  in  Chi- 
cago, one  of  the  largest  commercial  centers  in  the  country,  and  the 
plaintiffs  had  the  right  to  sell  it  there  in  good  faith,  and  hold  the  de- 
fendant liable  for  the  loss.     *     *     * 


BOOTH  V.   SPUYTEN   DUYVIL  ROLLING  MILL   CO. 

(Court  of  Appeals  of  New  York,  1875.    60  N.  Y.  4S7.) 

Action  against  the  Spuyten  Duyvil  Rolling  Mill  Company  for  breach 
of  a  contract  to  make  and  deliver  by  a  certain  date  a  quantity  of  steel 
caps  for  rails.  At  the  time  of  making  the  contract,  defendant  was  in- 
formed that  the  caps  were  to  be  used  in  making  rails  to  fill  a  contract 
which  plaintiff'  had  made  with  the  New  York  Central  Railroad  Com- 
pany, but  defendant  was  not  informed  as  to  what  price  plaintiff'  was 
to  receive  for  the  rails.  Both  parties  knew  that  the  caps  could  not  be 
procured  elsewhere  in  time  to  fill  the  sub-contract.  The  caps  alone  had 
no  market  value.  Defendant's  mill  was  burned  before  the  time  for 
furnishing  the  caps  had  expired,  and  they  were  never  furnished. 

Church,  C.  J.^*  *  *  *  Prior  to  the  contract  with  the  defend- 
ant, the  plaintiff'  had  contracted  with  the  New  York  Central  Railroad 
Company  to  sell  and  deliver  to  it  by  the  1st  of  June,  four  hundred 
tons  of  rails  to  be  composed  of  an  iron  foundation  and  steel  caps,  for 
the  invention  of  which  the  plaintiff  had  obtained  a  patent;  and  that 
when  the  contract  was  made  with  the  defendant  he  informed  it  that 
he  wanted  the  caps  to  perform  the  contract ;  that  if  they  had  been  de- 
livered by  the  1st  of  April  the  plaintiff  could  have  performed  his  con- 
tract; and  he  finds,  also,  facts  showing  that  the  plaintiff  would  have 
realized  the  amount  of  profits  for  which  the  recovery  was  ordered. 

The  damages  for  which  a  party  may  recover  for  a  breach  of  contract 
are  such  as  ordinarily  and  naturally  flow  from  the  nonperformance. 
They  must  be  proximate  and  certain,  or  capable  of  certain  ascertain- 
ment, and  not  remote,  speculative  or  contingent.  It  is  presumed  that 
the  parties  contemplate  the  usual  natural  consequences  of  a  breach 

80  Part  of  the  opiniou  is  omitted. 


204  COMPENSATORY  DAMAGES.  (Part    5 

when  the  contract  is  made;  and  if  the  contract  is  made  with  reference 
to  special  circumstances,  fixing  or  affecting  the  amount  of  damages, 
such  special  circumstances  are  regarded  within  the  contemplation  of 
the  parties,  and  damages  may  be  assessed  accordingly.  For  a  breach 
of  an  executory  contract  to  sell  and  deliver  personal  property  the  meas- 
ure of  damages  is,  ordinarily,  the  difference  between  the  contract  price 
and  the  market  value  of  the  article  at  the  time  and  place  of  delivery; 
but  if  the  contract  is  made  to  enable  the  plaintiff  to  perform  a  sub- 
contract, the  terms  of  which  the  defendant  knows,  he  may  be  held  lia- 
ble for  the  difference  between  the  subcontract  price  and  the  princi- 
pal contract  price,  and  this  is  upon  the  ground  that  the  parties  have 
impliedly  fixed  the  measures  of  damages  themselves,  or  rather  made 
the  contract  upon  the  basis  of  a  fixed  rule  by  which  they  may  be  as- 
sessed. The  authorities  cited  on  both  sides  recognize  tliese  general 
rules.     *     *     * 

The  difficulty  is  in  properly  applying  general  rules  to  the  facts  of 
each  particular  case.  Here  it  is  found  in  substance  that  the  contract 
was  made  to  enable  the  plaintiff  to  perform  his  contract  with  the  rail- 
road company,  and  that  this  was  known  to  the  defendant.  It  is  in- 
sisted however  that  as  the  price  which  the  railroad  company  was  to 
pay  the  plaintiff  for  the  rails  was  not  communicated  to  the  defendant 
it  cannot  be  said  that  it  made  the  contract  with  reference  to  such  price. 
It  is  expressly  found  that  there  was  no  market  price  for  the  steel  caps, 
and  it  does  not  appear  that  there  was  any  market  price  for  the  com- 
pleted rail.  The  presumption  is,  from  the  facts  proved,  that  there  was 
not.  It  was  a  new  article,  and  the  contract  was  made  to  bring  it  into 
use.  The  result  of  the  able  and  elaborate  argument  of  the  learned 
counsel  for  the  defendant  is,  that  in  such  a  case,  that  is  when,  although 
the  contract  is  made  with  reference  to  and  to  enable  the  plaintiff  to 
perform  a  subcontract,  yet  if  the  terms  of  the  subcontract,  as  to  price, 
are  unknown  to  the  vendor,  and  there  is  no  market  price  for  the  article, 
the  latter  is  not  liable  for  any  damages,  or  what  is  the  same  thing,  for 
only  nominal  damages.  I  have  examined  all  the  authorities  referred 
to,  and  I  do  not  find  any  which  countenances  such  a  position,  and  there 
is  no  reason  for  exempting  a  vendor  from  all  damages  in  such  a  case. 
It  is  not  because  the  vendee  has  not  suffered  loss,  as  he  has  lost  the 
profits  of  his  subcontract;  it  is  not  because  such  profits  are  uncertain, 
as  they  are  fixed  and  definite,  and  capable  of  being  ascertained  with 
certainty ;  it  is  not  because  the  parties  did  not  contract  with  reference 
to  the  subcontract,  when  it  appears  that  the  contract  was  made  for  the 
purpose  of  enabling  the  vendee  to  perform  it.  If  the  article  is  one 
which  has  a  market  price,  although  the  subcontract  is  contemplated, 
there  is  some  reason  for  only  imputing  to  the  vendor  the  contemplation 
of  a  subcontract  at  that  price,  and  that  he  should  not  be  held  for  ex- 
travagant or  exceptional  damages  provided  for  in  the  subcontract. 
But  the  mere  circumstance  that  the  vendor  does  not  know  the  pre- 
cise price  specified  in  the  contract  will  not  exonerate  him  entirely.    He 


Ch.  1)  DIRECT    AND    CONSEQUENTIAL   DAMAGES.  205 

cannot  in  any  case  know  the  precise  market  price  at  the  time  for  per- 
formance. Knowledge  of  the  amount  of  damages  is  impracticable, 
and  is  not  requisite.  It  is  only  requisite  that  the  parties  should  have 
such  a  knowledge  of  special  circumstances,  affecting  the  question  of 
damages,  as  that  it  may  be  fairly  inferred  that  they  contemplated  a  par- 
ticular rule  or  standard  for  estimating  them,  and  entered  into  the  con- 
tract upon  that  basis.  In  Hadley  v.  Baxendale,  9  Exch.  3-il,  which 
is  a  leading  case  on  the  subject  in  the  English  courts,  the  court  after 
speaking  of  the  general  rule,  says :  "If  the  special  circumstances  un- 
der which  the  contract  was  actually  made  were  communicated  by  the 
plaintiffs  to  the  defendants,  and  thus  known  to  both  parties,  the  dam- 
ages resulting  from  the  breach  of  such  a  contract,  which  they  would 
reasonably  contemplate,  would  be  the  am.ount  of  injury  which  would 
ordinarily  follow  from  a  breach  of  the  contract  under  the  special  cir- 
cumstances, so  known  and  communicated." 

This  case  has  been  frequently  referred  to,  and  the  rule  as  laid  down 
somewhat  criticised;  but  the  criticism  is  confined  to  the  character  of 
the  notice,  or  communication  of  the  special  circumstances.  Some  of 
the  judges,  in  commenting  upon  it,  have  held  that  a  bare  notice  of  spe- 
cial consequences  which  might  result  from  a  breach  of  the  contract, 
unless  under  such  circumstances  as  to  imply  that  it  formed  the  basis 
of  the  agreement,  would  not  be  sufficient.  I  concur  with  the  views 
expressed  in  these  cases;  and  I  do  not  think  the  court  in  Hadley  v. 
Baxendale,  intended  to  lay  down  any  different  doctrine.  Upon  the 
point  involved  here,  whether  the  defendant  is  exempted  from  the 
payment  of  any  damages  when  there  is  no  market  price,  and  the 
price  in  the  subcontract  is  not  known,  there  is  no  conflict  of  authority 
that  I  have  been  able  to  discover.  In  the  first  place,  there  is  con- 
siderable reason  for  the  position  that  where  the  vendor  is  distinct- 
ly informed  that  the  purchase  is  made  to  enable  the  vendee  to  ful- 
fill a  subcontract,  and  knows  that  there  is  no  market  price  for  the 
article,  he  assumes  the  risk  of  being  bound  by  the  price  named  in 
the  subcontract,  whatever  that  may  be,  but  it  is  unnecessary  to  go 
to  that  extent.  It  is  sufficient  to  hold,  what  appears  to  me  to  be  clear- 
ly just,  that  he  is  bound  by  the  price,  unless  it  is  shown  that  such  price 
is  extravagant,  or  of  an  unusual  and  exceptional  character.  The  pre- 
sumption is,  that  the  price  at  which  the  property  was  sold  was  its  fair 
value,  and  that  is  to  be  taken  as  the  market  price  for  the  purpose  of 
adjusting  the  damages  in  the  particular  case.  This  presumption  arises 
here.  The  profits  were  not  unreasonable,  certainly  not  extravagant. 
About  fifteen  per  cent,  was  allowed  for  profits,  including  the  use  of 
the  patent,  and  no  evidence  was  offered,  or  claim  made,  that  the  price 
was  not  the  fair  value  of  the  article.  We  must  assume  that  it  was,  and 
hence  within  the  contemplation  of  the  parties.  The  case  of  Borries 
V.  Hutchinson,  114  E.  C.  L.  443,  is  quite  analogous  to  this.  The  ar- 
ticle, caustic  soda,  was  purchased  to  be  sold  to  a  foreign  correspondent, 
which  the  defendant  knew.    There  were  several  items  of  damage  claim- 


206  COMPENSATORY  DAMAGES.  (Part    5 

ed.  The  profits  on  the  subcontract  were  conceded,  and  the  money 
paid  into  court,  but  the  court  held,  in  passing  judgment,  that  the  plain- 
tiff was  entitled  to  recover  such  profits.  Erie,  C.  J.,  said :  "Here  tl.-e 
vendor  had  notice  that  the  vendee  was  buying  the  caustic  soda,  an  ar- 
ticle not  ordinarily  procurable  in  the  market,  for  the  purpose  of  re- 
sale to  a  sub-vendee,  on  the  continent.  He  made  the  contract,  there- 
fore, with  the  knowledge  that  the  buyers  were  buying  for  the  purpose 
of  fulfilling  a  contract  which  they  had  made  with  a  merchant  abroad." 

The  case  of  Elbinger  v.  Armstrong,  L.  R.  9  Q.  B.  473,  also  illus- 
trates the  rule.  That  was  a  contract  for  the  purchase  of  six  hundred 
and  sixty-six  sets  of  wheels  and  axles,  which  the  plaintiff  designed 
to  use  in  the  manufacture  of  wagons;  and  which  he  had  contracted 
to  sell  and  deliver  to  a  Russian  company  by  a  certain  day,  or  forfeit 
two  roubles  a  day.  The  defendant  was  informed  of  the  contract,  but 
not  of  the  amount  of  penalties.  Some  delay  occurred  in  the  delivery, 
in  consequence  of  which  the  plaintiff  had  to  pay  ilOO.  in  penalties, 
and  the  action  was  brought  to  recover  that  sum.  There  was  no  market 
in  which  the  goods  could  be  obtained,  and  the  same  point  was  made 
there  as  here,  that  the  plaintiff  was  only  entitled  to  nominal  damages ; 
but  the  court  says :  "When  from  the  nature  of  the  article,  there  is  no 
market  in  which  it  can  be  obtained,  this  rule  (the  difference  between 
the  contract  and  market  value)  is  not  applicable,  but  it  would  be  very 
unjust  if,  in  such  cases,  the  damages  must  be  nominal." 

It  is  true  that  the  court  held  that  the  plaintiff  could  not  recover  the 
penalties  as  a  matter  of  right,  mainly  upon  the  ground  that  such  a  con- 
sequence was  not,  from  the  nature  of  the  notice,  contemplated  by  the 
parties;  and  yet  the  judgment,  directing  the  amount  of  the  penalties 
paid,  was  allowed  to  stand,  as  being  a  sum  which  the  jury  might  rea- 
sonably find.  Cory  v.  Iron  Works  Co.,  L.  R.  3  Q.  B.  181,  decided  that 
when  the  article  purchased  was  designed  by  the  purchaser  for  a  pe- 
culiar and  exceptional  purpose  unknown  to  the  seller,  the  latter  was 
nevertheless  liable  for  the  damages  which  would  have  been  incurred 
if  used  for  the  purpose  which  the  seller  supposed  it  would  be  used  for. 

The  case  of  Horner  v.  Railway  Co.,  L.  R.  8  C.  P.  134,  is  not  in  con- 
flict with  the  position  of  the  plaintiff.  In  that  case  the  article  had  a 
well-known  market  value.  The  subcontract  was  at  an  unusual  and  ex- 
travagant price,  of  which  the  defendant  was  not  informed.  Besides, 
the  defendant  was  a  carrier,  and  it  was  seriously  doubted  by  some  of 
the  judges  whether  the  same  rule  would  apply  to  a  carrier  as  to  a  ven- 
dor. The  question  in  all  these  cases  is,  what  was  the  contract?  and 
a  carrier  who  is  bound  to  take  property  offered  at  current  rates  would 
not,  perhaps,  be  brought  within  the  principle  by  a  notice  of  ulterior 
consequences,  unless  such  responsibility  was  sought  to  be  imposed  as 
a  condition,  and  he  have  an  opportunity  to  refuse  the  goods ;  or  unless 
a  special  contract  at  increased  rates  was  shown.  The  decision  was 
placed  upon  the  ground  that  the  exceptional  price  was  not  within  the 
contemplation  of  the  parties.    The  authorities  in  this  state  support  the 


^n-  1)  DIRECT    AND    CONSEQUENTIAL   DAMAGES.  207 

doctrine  of  liability  in  a  case  like  this.    The  cases  of  Griffin  v.  Colver  ^U^^:^ 

[16  N.  Y.  -iSU,  09  Am.  Dec.  718]  and  Messmore  v.  Lead  Co.,  supra  c. c^<^^ 

[40  N.  Y.  422],  especially  the  latter,  decide  the  same  principle.     The  ,3^  /^. .-: 
defendant  in  that  case  was  informed  of  the  price  of  the  subcontract,  -'      'r*'^'.' 
but  the  decision  was  not  put  upon  that  ground.    This  case  presents  all    ^-^^J*" 
the  elements  which  have  been  recognized  for  the  application  of  the  -''uJtJt^^ 
rule  of  liability.    The  plaintiff  contracted  with  the  defendant  express-  '~"T . .    - 
ly  to  enable  him  to  perform  his  contract  with  the  railroad  company,     •.  • 
which  the  defendant  knew.     The  goods  could  not  have  been  obtained   •  .^„ 

elsewhere  in  time;  and  in  consequence  of  the  failure  of  the  defendant 
to  perform  his  contract,  the  plaintiff  lost  the  benefit  of  his  subcontract. 
It  is  not  claimed  that  the  price  at  which  the  completed  rails  were  agreed 
to  be  sold  was  extravagant  or  above  their  value;  and  as  there  was  no 
market  price  for  the  article,  the  fact  that  the  defendant  was  not  in- 
formed of  the  precise  price  in  the  subcontract  does  not  affect  its  lia- 
bility. Nor  does  the  fact  that  the  defendant's  contract  does  not  em- 
brace the  entire  article  resold,  relieve  it  from  the  consequences  of  non- 
performance. It  was  a  material  portion  of  the  rail,  without  wdiich  it 
could  not  be  made;  and  solely  by  reason  of  the  failure  of  the  defendant, 
the  plaintiff  failed  to  perform  his  contract,  and  thereby  lost  the  amount 
for  which  he  has  recovered.  *  *  * 
Judgment,  allowing  recovery  for  profits  lost,  affirmed. 


GUETZKOW   BROS.    CO.   v.    ANDREWS    et   al. 

(Supreme  Court  of  Wisconsin,  189(5.     92  Wis.  214.  GO  N.  W.  119, 
52  L.  R.  A.  209,  53  Am.  St.  Rep.  909.) 

The  action  was  brought  to  recover  the  price  of  showcases  and  of     ^  -2 

articles  manufactured  for  the  defendants  by  the  plaintiff's.  The  goods  v  ^  '  J 
were  manufactured  for  a  special  purpose,  namely,  to  enable  defend- 
ants to  carry  out  a  contract  previously  made  by  them  to  supply  such 
goods  to  exhibitors  at  the  World's  Fair  in  Chicago  in  1893.  The 
amounts  that  defendants  were  to  receive  from  such  exhibitors  were 
in  advance  over  plaintiff's  price  of  100  to  150  per  cent.  The  defend- 
ants sought  to  counterclaim  as  to  damages  which  they  asserted  they 
had  sustained  by  reason  of  the  failure  of  plaintiff's  to  construct  the 
articles  in  accordance  with  the  contract,  whereby  defendants  lost  the 
profits  on  such  subcontracts. 

Marshall,  J."  *  *  *  There  is  no  controversy  but  that  the 
difference  between  the  contract  price  for  the  goods  to  appellants  and 
what  they  were  to  receive  was  unusually  large.  To  say  that  such  in- 
creased price  to  the  exhibitors  was  extraordinary,  in  a  superlative  de- 
gree, would  be  fully  justified.  It  also  appears  beyond  controversy  that 
respondent's  officers  knew,  when  the  contract  was  made  with  appel- 

3"  Tart  of  the  opinion  is  omitted,  and  the  statement  of  facts  is  rewritten 


208  COMPENSATORY  DAMAGES.  (Part   5 

lants,  that  the  goods  were  intended  for  a  special  purpose.  They  had 
reason  to  know  that  there  was  no  estabHshed  market  price  for  such 
goods.  They  knew  that  defendants  were  under  contract  to  furnish 
the  goods  to  the  exhibitors,  but  it  does  not  appear  that  they  had  any 
notice  of  the  contract  price  such  exhibitors  were  to  pay;  and  it  is  in 
the  hght  of  these  facts  that  we  must  determine  the  question  pre- 
sented.    *     *     * 

Where  there  has  been  a  previous  sale,  or  where  there  has  not,  the 
fundamental  principle  to  be  observed  is  that  the  damages  for  the  breach 
complained  of  must  be  confined  to  such  as  may  be  fairly  considered  to 
arise,  according  to  the  usual  course  of  things,  from  such  breach,  or 
such  as  may  reasonably  be  supposed  to  have  been  in  contemplation  of 
the  parties  at  the  time  of  making  the  contract  as  the  probable  result 
of  the  breach  of  it.  Hadley  v.  Baxendale,  9  Exch.  341 ;  Cockburn  v. 
Lumber  Co.,  54  Wis.  619,  12  N.  W.  49.  Hence,  it  is  held  that,  in  or- 
der to  make  applicable  the  special  rule  of  damages, — that  is,  loss  of 
profits, — it  must  be  shown  that  the  special  circumstances,  by  reason 
of  which  the  party  invokes  such  application,  were  brought  clearly  home 
to  the  knowledge  of  both  parties  at  the  time  the  contract  was  made, 
and  it  is  only  applicable  in  so  far  as  such  circumstances  were  so 
brought  home.     *     *     * 

But  the  question  arises  whether  the  price  to  the  first  vendee  must 
be  communicated  to  the  second  vendor  in  order  that  he  may  be  charg- 
ed with  the  special  rule  of  damages  at  the  suit  of  his  vendee,  in  case 
of  a  breach  on  the  part  of  such  second  vendor;  and  upon  the  precise 
point  here  presented  the  authorities  are  not  numerous.  In  Cockburn 
V.  Lumber  Co.,  supra,  Mr.  Justice  Lyon  said :  "To  bind  the  defendant 
by  a  price  stipulated  for  on  a  resale,  he  must  have  had  notice  of  such 
resale  when  the  contract  was  made,  though,  perhaps,  not  of  the  con- 
tract price."  But  it  must  be  observed  that,  in  the  case  then  under  con- 
sideration, the  circumstance  of  extraordinary  profits  was  not  present; 
that  is,  the  evidence  did  not  disclose  but  that  the  profits  were  such  as 
were  reasonable,  and  might  reasonably  have  been  in  contemplation 
by  both  parties  to  the  transaction  when  the  contract  was  made.  The 
question  has  been  many  times  considered  in  the  courts  of  England, 
and  may  be  said  to  have  been  long  settled,  that  the  second  vendor  is 
only  bound  by  the  terms  of  the  contract  with  the  second  vendee,  so  far 
as  communicated  to  him,  or  he  had  reasonable  ground  to  know  the 
same,  by  inference  from  facts  brought  to  his  knowledge.  All  of  the 
cases  refer  to  and  are  founded  upon  the  general  principle  laid  down  in 
Hadley  v.  Baxendale.     *     *     * 

Differences  may  be  found  in  the  interpretations  which  courts  have 
put  on  the  rule  of  Hadley  v.  Baxendale;  but  they  generally  hold  that 
the  price  in  the  first  contract  need  not  be  communicated,  as  intimated 
in  Cockburn  v.  Lumber  Co.,  in  this  court.  They  proceed  upon  the 
principle,  all  of  them,  that  knowledge  of  the  first  contract  is  sufficient 
to  bring  home  to  the  second  vendor,  as  an  inference  of  fact,  knowl- 


Ch.  1^  DIRECT    AND    CONSEQUENTIAL   DAMAGES.  209 

edge  that  the  price  in  the  first  contract  is  sufficiently  in  advance  of  the 
price  in  the  second  contract  to  allow  a  reasonable  profit  to  the  second 
vendee.  We  venture  to  say  that  no  case  can  be  found,  where  the  price 
was  out  of  all  proportion  to  anything  that  might  be  considered  rea- 
sonable in  order  to  give  a  fair  profit,  that  the  court  has  held  that  such 
unreasonable  profits  may  be  recovered  as  damages,  where  knowledge 
of  such  unreasonable  profits,  as  a  special  circumstance,  was  not  known 
to  both  parties  at  the  time  of  the  making  of  the  contract.  The  most 
that  is  held  in  Booth  v.  Mill  Co.,  60  N.  Y.  487,  cited  with  confidence 
by  appellants,  is  that  the  second  vendor  is  bound  by  the  price  his  ven- 
dee is  to  receive,  unless  it  is  shown  that  such  price  is  extravagant,  or 
of  an  unusual  or  exceptional  character.  That  is  as  far  as  the  Xew 
York  courts  have  gone.  Church,  C.  J.,  said :  "There  is  considerable 
reason  for  the  position  that,  where  the  vendor  is  distinctly  informed 
that  the  purchase  is  made  to  enable  the  vendee  to  fulfill  a  previous  con- 
tract, and  he  knows  there  is  no  market  price  for  the  article,  he  assumes 
the  risk  of  being  bound  by  the  price  named  in  such  previous  contract, 
whatever  it  may  be."  But  no  such  rule  was  adopted,  and  no  case  was 
there  cited  to  support  such  a  rule,  and  we  are  unable  to  see  wherein 
such  reason  exists.  It  could  only  be  consistent  with  the  theory  that 
the  law  aims  at  complete  compensation  for  all  losses,  including  gains 
prevented  as  well  as  losses  sustained,  without  the  important  condition, 
requisite  to  give  the  rule  the  basic  foundation  upon  which  all  rules 
lor  the  assessment  of  damages  are  supposed  to  rest,  that  of  natural 
justice,  which  condition  must  always  be  considered  in  order  that  the 
true  rule  may  be  correctly  stated.  That  is,  that  the  damages  must  be 
such  as  can  be  fairly  supposed  to  have  entered  into  the  contemplation 
of  both  parties.  *  *  *  38 
Judgment  for  plaintiff  affirmed. 


SHERROD  v.  LANGDON. 

(Supreme  Court  of  Iowa,  1866.     21  Iowa,  518.) 

Plaintiffs  seek  to  recover  damages  resulting,  as  they  allege,  from  the 
purchase  by  them  of  defendants  of  a  certain  lot  of  sheep.  In  one  count 
it  is  alleged  that  the  sheep  were  warranted  sound,  in  the  other  that 
they  were  represented  to  be  free  from  any  disease,  and  especially  such 
as  "foot-rot"  and  "scab";  that  this  was  false,  etc.  Upon  issue  joined, 
there  was  a  trial.  Verdict  for  plaintiff,  judgment  thereon,  and  de- 
fendant appeals. 

8  8  That  loss  of  profit  on  a  resale  is  not  an  element  of  the  allowance  for 
damnpes.  see  Williams  v.  Reynolds.  6  Best  &  S.  405  (1865);  (contra,  Dunlop 
V.  nifr;:ins.  1  H.  L.  Cas.  381  [18481.  in  Scotland),  excepting  where  no  other 
basis  of  admeasurement  exists,  as  where  the  article  is  not  obtainable  in  the 
market  (France  v.  Gaudet,  L.  R.  6  Q.  B.  199  [1871] ;  McIIose  v.  Fulmer,  73 
Gilb.Dam.— 14 


210  COMPENSATORY   DAMAGES.  (Part    5 

Wright,  J."  *  *  *  Plaintiffs  had,  at  the  time  of  purchasing 
these  sheep,  other  sheep,  and  these,  as  they  claim,  became  diseased  and 
died  because  of  the  "foot-rot"  and  "scab"  imparted  to  them  by  the  un- 
sound sheep  so  sold  to  them  by  defendants,  without  fault,  etc.  The  in- 
jury to  these  sheep  so  owned  prior  to  this  purchase,  under  the  instruc- 
tions, entered  as  an  element  in  the  damages  recovered  by  plaintiffs. 

And  now  the  point  made  is,  that  this  was  improper  unless  defend- 
ants knew  at  the  time  of  such  sale  that  plaintiffs  had  other  sheep.  It 
is  not  claimed  that  such  damages  would  not  be  the  natural  consequen- 
ces of  defendants'  (fraudulent)  act,  and  as  such  properly  recoverable 
in  this  action;  but  the  claim  is,  that  this  could  only  be  so  upon  the 
theory  that  defendants  knew  that  plaintiffs  had  other  sheep  to  be  in- 
fected by  the  diseases  named. 

Upon  principle  this  position  is  not  sustainable.  Plaintiffs  were  en- 
titled to  recover  all  the  damages  of  which  the  act  complained  of  was 
the  efficient  cause.  The  loss  of  the  sheep  sold  in  consequence  of  their 
unsound  condition  was  the  natural  and  usual  consequence  of  the  act. 
The  other  damages  were  special  and  peculiar,  and  they  were  set  forth 
specifically  by  the  pleader.  And  upon  the  assumption  that  plaintiffs 
used  the  care  and  diligence  required  at  their  hands,  what  matters  it 
whether  defendants  knew  that  they  had  other  sheep  or  not?  Or  what 
difference  would  it  make  if  plaintiff*,  in  ignorance  of  the  unsound  con- 
dition of  these  sheep,  had  afterward  bought  other  sheep,  which  they 
lost  by  reason  of  the  disease  communicated  to  them  by  those  bought 
of  defendants?  Defendants  sold  the  sheep  with  the  knowledge  that 
plaintiffs  had  a  right  to  and  probably  would  place  them  upon  their 
farm;  and,  if  guilty  as  charged,  they  would  be  held  liable  for  the 
damages  naturally  and  reasonably  resulting  from  such  act.  It  is  known 
as  a  matter  of  fact,  that  most  farmers  in  this  state  do  keep  sheep, 
and  nothing  is  more  important  to  their  success  than  to  secure  good, 
sound  flocks.  If  one  lot  is  procured,  there  is  no  duty  to  refrain  from 
purchasing  others,  lest  those  purchased  may  be  unsound,  and  thus 
all  be  lost.  (But  the  guarantor,  or  party  making  the  false  representa- 
tions, sells  with  a  knowledge  that  his  purchaser  may  have  or  may  pur- 
chase other  sheep,  and  cannot  screen  himself  from  the  consequences 
of  his  act  upon  the  ground  of  ignorance.  As  well  might  he  sell  a  weap- 
on dangerous  and  "infernal"  in  its  structure,  representing  it  to  be 
harmless,  and  nothing  more  than  a  desirable  improvement  in  firearms, 
and  then  escape  liability  for  injury  to  the  purchaser's  home  or  family 
on  the  ground  that  he  did  not  know  that  he  had  either.    The  ground 

Pa.  365  [1873] ;  Trigg  v.  Clay,  post.  p.  344)  or  unless  there  be  knowledge  on 
the  part  of  the  vendor  of  the  existence  of  subcontracts  by  the  vendee  (Jordan 
V.  Patterson.  67  Conn.  473.  35  Atl.  521  [1896]). 

See,  also.  Thol  v.  Henderson,  8  Q.  B.  Div.  457  (1881);  Borries  v.  Hutchin- 
son, 18  C.  B.  (N.  S.)  445  (186.5);  Cort  v.  Ambergate,  17  Q.  B.  127  (1851);  Hy- 
draulic E.  Co.  V.  McHaffie,  4  Q.  B.  Div.  670  (1878). 

38  Part  of  the  opinion  is  omitted. 


Ch.  1)  DIUECT    AND    CONSEQUENTIAL   DAMAGES.  211 

of  the  recovery  is,  that  the  loss  actually  happened  while  defendants* 
wrongful  act  was  in  operation — a  loss  attributable  to  their  wrongful 
or  fraudulent  act,  and  it  is  not  for  them  to  say,  we  did  not  know  plain- 
tiflfs  had  other  sheep,  and  hence  did  not  contemplate  or  undertake  to 
be  liable  for  so  great  a  loss.     *     *     *  <o 


HAMMER    V.    SCHOENFELDER. 

(Supreme  Court  of  Wisconsin,  1S71).     47  Wis.  455,  2  X.  W.  1120.) 

Cole,  J.*^  The  only  question  in  this  case  relates  to  the  rule  of  dam- 
ages for  the  failure  of  the  defendant  to  supply  ice  according  to  his 
contract.  The  plaintiff  was  a  butcher  by  trade,  and  the  defendant  un- 
dertook and  agreed  to  furnish  him  with  what  ice  he  might  require  for 
his  ice  box,  in  which  he  kept  fresh  meat,  at  a  stipulated  sum,  for  the 
season  of  1878. 

About  the  last  of  July  the  defendant  stopped  supplying  ice,  and  re- 
fused any  longer  to  furnish  the  plaintiff  with  ice  for  his  box.  In  con- 
sequence the  plaintiff  lost  considerable  fresh  meat,  which  spoiled  for 
want  of  ice.  The  defendant  had  supplied  the  plaintiff  with  ice  the 
previous  season,  and  well  understood  the  use  to  be  made  of  the  ice 
which  he  contracted  to  deliver.  Nothing  was  paid  by  the  plaintiff  on 
the  contract.  *  *  * 
r  Of  course  this  was  an  action  for  a  breach  of  the  contract,  but  as 
the  defendant  fully  knew  the  use  which  the  plaintiff  wished  to  make 
of  the  ice  he  agreed  to  deliver,  namely,  to  supply  his  ice  box  in  order 
to  preserve  fresh  meat,  there  is  no  hardship  in  allowing  the  plaintiff 
to  recover  "not  only  general  damages — that  is,  such  as  are  the  neces- 
sary and  immediate  result  of  the  breach — but  special  damages,  which 
are  such  as  are  the  natural  and  proximate  consequence  of  the  breach, 
although  not  in  general  following  as  its  immediate  effect." )  *     *     * 

Now,  as  the  defendant  was  acquainted  with  all  the  special  circum- 
stances in  respect  to  this  contract — knew   for  what  purpose  the  ice 

40  Erie,  J.,  in  Mullett  v.  Mason,  L.  R.  1  C.  P.  559  (ISGG),  said: 

"Tlie  plaintiff  bonglit  a  cow  of  the  defenrlant  who  warranted  it  sound,  though 
at  the  time  it  had  the  cattle  plague;  the  breach  of  warranty,  therefore,  is 
undoubted.  But  the  plaintiff  also  complains  that  the  defendant  fraudulently 
represented  to  him  that  it  had  no  infectious  disease  while  he  knew  that  it 
had.  I  do  not  stop  to  inquire  what  would  have  been  the  measure  of  dam- 
ages if  there  had  only  been  the  warranty,  because  it  is  clear  that  if  a  seller 
makes  a  fraudulent  representation  to  a  buyer  to  induce  liini  to  buy.  the  buyer 
has  a  right  to  act  uiwn  it  as  if  it  were  true,  and  if  he  does  so  the  seller 
must  compensate  him  for  all  the  direct  consequences  that  naturally  follow 
from  it.  In  the  present  case,  therefore,  the  defendant  is  liable  for  all  the 
direct  consequences  of  the  plaintiff  treating  the  cow  as  if  it  was  free  from 
any  infectious  disease,  and  placing  It,  as  he  naturally  would,  with  other  cattle, 
and  the  death  of  the  other  cows  was  a  direct  consequence  of  his  doing  that." 

Accord:  KnoAvles  v.  Xuiins.  14  Law  T.  (\.  S.)  5t)2  (ISOG),  and  Smith  v. 
Green.  1  C.  P.  Div.  92  (1S75). 

*i  Part  of  the  opinion  Is  omitted. 


212  COMPENSATORY  DAMAGES.  (Part    5 

agreed  to  be  furnished  by  him  was  to  be  used — he  should  fully  indem- 
nify the  plaintiff  for  the  loss  he  sustained  by  non-delivery  of  the  ice, 
and  he  was,  therefore  justly  chargeable  in  damages  for  the  meat 
spoiled  in  consequence  of  the  inability  of  the  plaintiff  to  procure  ice 
elsewhere.  This  is  a  legitimate  element  to  be  considered  in  estimat- 
ing the  plaintiff's  damages.  It  is  a  consequence  which  "may  reason- 
ably be  supposed  to  have  been  in  the  contemplation  of  both  parties,  at 
the  time  of  making  of  the  contract,  as  the  probable  result  of  the  breach 
of  it."     *     *     *  *^ 


PRIMROSE  V.   WESTERN   UNION   TELEGRAPH   CO. 

(Supreme  Court  of  United  States.  1^04.    154  U.  S.  1,  14  Sup.  Ct  1098, 
38   h.   Ed.   SS3.) 

On  June  16,  1887,  the  plaintiff  wrote  and  delivered  to  the  defendant, 
at  Philadelphia,  for  transmission  to  his  agent,  William  B.  Toland,  at 
Ellis,  in  the  state  of  Kansas,  a  message: 
"To  Wm.  B.  Toland,  Ellis,  Kansas : 

"Despot  am  exceedingly  busy  bay  all  kinds  quo  perhaps  bracken 
half  of  it  mince  moment  promptly  of  purchases. 

"Frank  J,  Primrose." 

On  the  evening  of  the  same  day,  an  agent  of  the  defendant  delivered 
to  Toland,  at  Waukeney,  upon  a  blank  of  the  defendant  company,  the 
message  in  this  form : 
"To  W.  B.  Toland,  Waukeney,  Kansas: 

"Destroy  am  exceedingly  busy  buy  all  kinds  quo  perhaps  bracken 
half  of  it  mince  moment  promptly  of  purchase. 

"Frank  J.  Primrose." 

The  difference  between  the  message  as  sent  and  as  delivered  is 
shown  below,  where  so  much  of  the  message  sent  as  was  omitted  in 
that  delivered  is  in  brackets,  and  the  words  substituted  in  the  message 
delivered  are  in  italics. 

"[Despot]  Destroy  am  exceedingly  busy  [bay]  buy  all  kinds  quo 
perhaps  bracken  half  of  it  mince  moment  promptly  of  purchase [s]." 

By  the  private  cipher  code  made  and  used  by  the  plaintiff  and  To- 
land, the  meaning  of  these  words  was  as  follows : 

"Yours  of  the  [fifteenth]  seventeenth  received;  am  exceedingly 
busy;    [I  have  bought]  buy  all  kinds,  five  hundred  thousand  pounds; 

4  2  Hadley  v.  Baxendale,  ante,  p.  189,  is  so  obviously  the  leading  case  upon 
this  subject  that  all  other  cases  therein  will  be  found  to  be  largely  commen- 
taries thereon.  Among  other  important  American  cases  are  Griffin  v.  Colver, 
16  N.  Y.  489,  69  Am.  Dec.  718  (1858),  herein  in  part,  post.  p.  245;  Little  v.  B. 
&  M.  R.  R.,  66  Me.  239  (1876);  Brock  v.  Gale,  14  Fla.  523,  14  Am.  Rep.  356 
(1874) ;  Swift  v.  E.  W.  Co.,  86  Ala.  294,  5  South.  505  (1888) ;  Smith  v.  Flan- 
ders, 129  Mass.  322  (1880) ;  Jones  v.  George,  61  Tex.  345,  48  Am.  Rep.  280  (1884) ; 
McHose  V.  Fulraer,  73  Pa.  365  (1873).  And  see.  elsewhere  in  this  volume,  Jor- 
d<m  V.  Patterson,  ante,  p.  210,  note;  Harvey  v.  C.  &  P.  R.  R.  Co.,  post,  p.  610; 
Trigg  v.  Clay,  post,  p.  344. 


:)4-^ 


Ch.  1)  DIRECT    AND    CONSEQUENTIAL    DAMAGES.  213 

perhaps  we  have  sold  half  of  it;  wire  when  you  do  anything;  send 
samples  immediately,  promptly  of  [purchases]  purchase." 

The  plaintiff  testified  that  he  then  was,  and  for  many  years  had  been, 
engaged  in  the  business  of  buying  and  selling  wool  all  over  the  coun- 
try, and  had  employed  Tolaud  as  his  agent  in  that  business,  and  early 
in  June,  1887,  sent  him  out  to  Kansas  and  Colorado,  with  instructions 
to  buy  50,000  pounds,  and  then  to  await  orders  from  him  before  buy- 
ing more;  that,  before  June  12th,  Toland  bought  50,000  pounds,  and 
then  stopped  buying ;  and  that  he  had  sent  many  telegraphic  messages 
to  Toland  during  that  month  and  previously,  using  the  same  code. 

The  defendant's  agent  at  Philadelphia,  called  as  a  witness  for  the 
plaintiff,  testified  that  he  sent  this  message  for  the  plaintiff,  and  knew 
that  he  was  a  dealer  in  wool,  and  that  Toland  was  with  him,  but  in 
what  capacity  he  did  not  know ;  that  he  had  frequently  sent  messages 
for  him,  and  considered  him  one  of  his  best  customers  during  the  wool 
season.  The  plaintiff  also  introduced  evidence  to  show  that  Toland, 
upon  receiving  the  message  at  Waukeney,  made  purchases  of  about 
300,000  pounds  of  wool;  and  that  the  plaintiff,  in  settling  with  the 
sellers  thereof,  suffered  a  loss  of  upwards  of  $20,000.*^ 

Gray,  J.^*  *  *  *  Under  any  contract  to  transmit  a  message  by 
telegraph,  as  under  any  other  contract,  the  damages  for  a  breach  must 
be  limited  to  those  which  may  be  fairly  considered  as  arising  accord- 
ing to  the  usual  course  of  things  from  the  breach  of  the  very  contract 
in  question,  or  which  both  parties  must  reasonably  have  understood 
and  contemplated,  when  making  the  contract,  as  likely  to  result  from 
its  breach.  This  was  directly  adjudged  in  Telegraph  Co.  v.  Hall,  12-i 
U.  S.  44-1,  8  Sup.  Ct.  577,  31  L.  Ed.  479.     *     *     * 

In  Telegraph  Co.  v.  Gildersleve,  already  referred  to,  which  was  an 
action  by  the  sender  against  a  telegraph  company  for  not  delivering 
this  message  received  by  it  in  Baltimore,  addressed  to  brokers  in  New 
York,  "Sell  fifty  (50)  gold,"  Mr.  Justice  Alvey,  speaking  for  the  Court 
of  Appeals  of  Maryland,  and  applying  the  rule  of  Hadley  v.  Baxen- 
dale,  above  cited,  said :  "While  it  was  proved  that  the  dispatch  in  ques- 
tion would  be  understood  among  brokers  to  mean  fifty  thousand  dol- 
lars of  gold,  it  was  not  shown,  nor  was  it  put  to  the  jury  to  find,  that 
the  appellant's  agents  so  understood  it,  or  whether  they  understood 
it  at  all.  'Sell  fifty  gold'  may  have  been  understood  in  its  literal  im- 
port, if  it  can  be  properly  said  to  have  any,  or  was  as  likely  to  be  tak- 
en to  mean  fifty  dollars  as  fifty  thousand  dollars  by  those  not  initiat- 
ed; and,  if  the  measure  of  responsibility  at  all  depends  upon  a  knowl- 
edge of  the  special  circumstances  of  the  case,  it  would  certainly  fol- 
low that  the  nature  of  this  dispatch  should  have  been  communicated 
to  the  agent  at  the  time  it  was  offered  to  be  sent,  in  order  that  the  ap- 
pellant might  have  observed  the  precautions  necessary  to  guard  itself 

43  This  statement  is  abridged  from  that  of  the  official  report, 
**  I'ait  of  the  opiuion  is  omitted. 


214  COMPENSATORY   DAMAGES.  (Part    5 

against  the  risk.  But  without  reference  to  the  fact  as  to  whether  the 
appellant  had  knowledge  of  the  true  meaning  and  character  of  the 
dispatch,  and  was  thus  enabled  to  contemplate  the  consequences  of 
a  breach  of  the  contract,  the  jury  were  instructed  that  the  appellee  was 
entitled  to  recover  to  the  full  extent  of  his  loss  by  the  decline  in  gold. 
In  thus  instructing  the  jury,  we  think  the  court  committed  error,  and 
that  its  ruling  should  be  reversed."    29  Md.  232,  251,  96  Am.  Dec.  519. 

In  Baldwin  v.  Telegraph  Co.,  which  was  an  action  by  the  senders 
against  the  telegraph  company  for  not  delivering  this  message,  "Tele- 
graph me  at  Rochester  what  that  well  is  doing,"  Mr.  Justice  Allen, 
speaking  for  the  court  of  appeals  of  New  York,  said:  "The  message 
did  not  import  that  a  sale  of  any  property  or  any  business  transaction 
hinged  upon  the  prompt  delivery  of  it,  or  upon  any  answer  that  might 
be  received.  For  all  the  purposes  for  which  the  plaintiffs  desired  the 
information,  the  message  might  as  well  have  been  in  a  cipher  or  in  an 
unknown  tongue.  It  indicated  nothing  to  put  the  defendant  upon  the 
alert,  or  from  which  it  could  be  inferred  that  any  special  or  peculiar 
loss  would  ensue  from  a  nondelivery  of  it.  'Whenever  special  or  extra- 
ordinary damages,  such  as  would  not  naturally  or  ordinarily  follow  a 
breach,  have  been  awarded  for  the  nonperformance  of  contracts, 
whether  for  the  sale  or  carriage  of  goods  or  for  the  delivery  of  mes- 
sages by  telegraph,  it  has  been  for  the  reason  that  the  contracts  have 
been  made  with  reference  to  peculiar  circumstances  known  to  both, 
and  the  particular  loss  has  been  in  the  contemplation  of  both,  at  the 
time  of  making  the  contract,  as  a  contingency  that  might  follow  the 
nonperformance."  "The  dispatch  not  indicating  any  purpose  other 
than  that  of  obtaining  such  information  as  an  owner  of  property  might 
desire  to  have  at  all  times,  and  without  reference  to  a  sale,  or  even  a 
stranger  might  ask  for  purposes  entirely  foreign  to  the  property  itself, 
it  is  very  evident  that,  whatever  may  have  been  the  special  purpose 
of  the  plaintiffs,  the  defendant  had  no  knowledge  or  means  of  knowl- 
edge of  it,  and  could  not  have  contemplated  either  a  loss  of  a  sale,  or 
a  sale  at  an  undervalue,  or  any  other  disposition  of  or  dealing  with 
the  well  or  any  other  property,  as  the  probable  or  possible  result  of  a 
breach  of  its  contract.  The  loss  which  would  naturally  and  necessa- 
rily result  from  the  failure  to  deliver  the  message  would  be  the  money 
paid  for  its  transmission,  and  no  other  damages  can  be  claimed  upon 
the  evidence  as  resulting  from  the  alleged  breach  of  duty  by  the  de- 
fendant." 45  N.  Y.  744,  749,  750,  752,  6  Am.  Rep.  165.  See,  also, 
Hart  V.  Cable  Co.,  86  N.  Y.  633. 

The  Supreme  Court  of  Illinois,  in  Tyler  v.  Telegraph  Co.,  above  cit- 
ed, took  notice  of  the  fact  that  in  that  case  "the  dispatch  disclosed  the 
nature  of  the  business  as  fully  as  the  case  demanded."  60  111.  434, 
14  Am.  Rep.  38.  And  in  the  recent  case  of  Cable  Co.  v.  Lathrop  the 
same  court  said :  "It  is  clear  enough  that,  applying  the  rule  in  Hadley 
v.  Baxendale,  supra,  a  recovery  cannot  be  had  for  a  failure  to  correct- 
ly transmit  a  mere  cipher  dispatch,  unexplained,  for  the  reason  that 


Ch.  1)  DIUECT    AND    CONSEQUENTIAL    DAMAGES.  215 

to  one  unacquainted  with  the  meaning  of  the  ciphers  it  is  wholly  unin- 
telligible and  nonsensical.  An  operator  would  therefore  be  justifiable 
iu  saying  that  it  can  contain  no  information  of  value  as  pertaining  to  a 
business  transaction,  and  a  failure  to  send  it  or  a  mistake  in  its  trans- 
mission can  reasonably  result  in  no  pecuniary  loss."  131  111.  575,  585, 
23  N.  E.  583,  7  L.  R.  A.  474,  19  Am.  St.  Rep.  55.     *     *     * 

In  the  present  case  the  message  was,  and  was  evidently  intended  to 
be,  wholly  unintelligible  to  the  telegraph  company  or  its  agents.  They 
were  not  informed,  by  the  message  or  otherwise,  of  the  nature,  im- 
portance, or  extent  of  the  transaction  to  which  it  related,  or  of  the 
position  which  the  plaintiff  would  probably  occupy  if  the  message  were 
correctly  transmitted.  Mere  knowledge  that  the  plaintiff  was  a  wool 
merchant,  and  that  Toland  was  in  his  employ,  had  no  tendency  to  show 
what  the  message  was  about.  According  to  any  understanding  which 
the  telegraph  company  and  its  agents  had,  or  which  the  plaintiff  could 
possibly  have  supposed  that  they  had,  of  the  contract  between  these 
parties,  the  damages  which  the  plaintiff  seeks  to  recover  in  this  ac- 
tion, for  losses  upon  wool  purchased  by  Toland,  were  not  such  as  could 
reasonably  be  considered,  either  as  arising,  according  to  the  usual 
course  of  things,  from  the  supposed  breach  of  the  contract  itself,  or 
as  having  been  in  the  contemplation  of  both  parties,  when  they  made 
the  contract,  as  a  probable  result  of  a  breach  of  it. 

In  any  view  of  the  case,  therefore,  it  was  rightly  ruled  by  the  Cir- 
cuit Court  that  the  plaintiff  could  recover  in  this  action  no  more  than 
the  sum  which  he  had  paid  for  sending  the  message.  Judgment  af- 
firmed. 

Fuller,  C.  J.,  and  Harlan,  J.,  dissented. 


SANDERS  et  al.  v.  STUART. 

(Court  of  Common  Pleas,  1S76.    1  C.  P.  Div.  326.) 

Lord  Coleridge,  C.  J.*'  The  plaintiffs  in  this  case  were  merchants 
in  this  country;  the  defendant  a  person  who  made  his  living  by  col- 
lecting messages  and  transmitting  them  by  telegraph  to,  amongst  oth- 
er places,  America.  He  received  from  the  plaintiff's  for  transmission 
to  New  York  a  message,  in  words  by  themselves,  entirely  unintellig- 
ible, but  which  could  be  understood  by  the  plaintiffs'  correspondent  in 
New  York  as  giving  a  large  order  for  certain  goods,  on  which  the 
plaintiffs,  if  the  order  had  been  confirmed,  would  have  earned  a  con- 
siderable commission.  The  defendant,  through  admitted  negligence, 
did  not  transmit  the  message,  and  the  plaintiffs  admittedly  lost  there- 
by considerable  profits  which  they  would  otherwise  have  made  by  the 
transaction. 

*f>  Part  of  tbe  opinion  is  omitted. 


216  COMPENSATORY   DAMAGES.  (Part    5 

The  action  was  for  negligence  in  not  transmitting  the  message ;  the 
verdict  was  for  the  plaintiffs,  and  the  question  arises  as  to  the  due 
measure  of  damages.  The  plaintiffs  seek  to  retain  the  verdict  for  a 
sum  intended  to  represent  the  loss  of  profit  above  mentioned.  The 
defendant  insists  that  such  damages  are  not  within  the  rule  laid  down 
in  Hadley  v.  Baxendale,  9  Ex.  341,  23  L.  J.  Ex.  179,  and  ever  since 
approved  of  and  acted  on,  and  that  in  this  case  there  is  nothing  to 
warrant  a  verdict  for  damages  more  than  nominal.  Upon  the  facts  of 
this  case  we  think  that  the  rule  in  Hadley  v.  Baxendale,  9  Ex.  341,  23 
L.  J.  Ex.  179,  applies,  and  that  the  damages  recoverable  are  nominal 
only.  It  is  not  necessary  to  decide,  and  we  do  not  give  any  opinion 
how  the  case  might  be  if  the  message,  instead  of  being  in  language 
utterly  unintelligible,  had  been  conveyed  in  plain  and  intelligible  words- 
It  was  conveyed  in  terms  which,  as  far  as  the  defendant  was  concern- 
ed, were  simple  nonsense.  For  this  reason,  the  second  portion  of 
Baron  Alderson's  rule  clearly  applies.  No  such  damages  as  above 
mentioned  could  be  "reasonably  supposed  to  have  been  in  the  contem- 
plation of  both  parties  at  the  time  they  made  the  contract  as  the  prob- 
able result  of  the  breach  of  it,"  for  the  simple  reason  that  the  defend- 
ant, at  least,  did  not  know  what  his  contract  was  about,  nor  what,  nor 
whether  any,  damage  would  follow  from  the  breach  of  it.  And  for 
the  same  reason,  viz.  the  total  ignorance  of  the  defendant  as  to  the 
subject-matter  of  the  contract  (an  ignorance  known  to,  and,  indeed, 
intentionally  procured  by  the  plaintiffs),  the  first  portion  of  the  rule 
applies  also;  for  there  are  no  damages  more  than  nominal  which  can 
"fairly  and  reasonably  be  considered  as  arising  naturally,  i.  e.,  accord- 
ing to  the  usual  course  of  things,  from  the  breach"  of  such  a  contract 
as  this.     *     *     * 


WESTERN  UNION  TELEGRAPH  CO.  v.  WILSON. 

;       '        (Supreme  Court  of  Florida,  1893.     3^  Fla.  527,  14  South.  1,  22  L.  R.  A. 
,^  434,  37  Am.  St.  Rep.  125.) 

'1 

The  plaintiff  delivered  to  the  defendant  company  for  transmission 
,  ^  ft  from  Pensacola  to  Liverpool  the  following  cipher  message :  "Dobell, 
Liverpool:  Gladfulness,  shipment,  rosa — bonheur — luciform — bane- 
wort— margin" — which,  being  interpreted,  was  an  order  upon  plain- 
tiff's agent,  Dobell,  to  sell  a  cargo  of  lumber  and  timber  then  in  Pensa- 
cola. The  message  was  not  delivered.  The  plaintiff  alleges  a  loss  of 
$630.84  by  reason  of  the  default  of  defendant.* 

Taylor,  J.*®  *  *  *  ^-j^q  question  presented  is,  what  is  the  prop- 
er measure  of  damages  to  be  recovered  of  a  telegraph  company  holding 

♦The  statement  of  facts  has  been  rewritten. 

4  6  The  opinion  of  Raney,  G.  J.,  and  parts  of  the  opinions  of  Taylor  and 
Mabry,  JJ.,  are  omitted. 


txM 


Ch.  1)  DIRECT    AND    CONSEQUENTIAL   DAMAGES.  217 

itself  out  to  the  service  of  the  pubHc,  for  hire,  as  the  transmitter  of 
messages  by  electricity,  upon  its  failure  to  transmit  or  deliver  a  mes- 
sage written  in  cipher,  or  in  language  unintelligible  except  to  those 
having  a  key  to  its  hidden  meaning.  As  this  question  has  heretofore 
been  passed  upon  by  this  court  contrary  to  the  views  we  find  it  impos- 
sible to  become  divested  of,  and,  as  we  think,  contrary  to  the  great 
weight  of  the  well-reasoned  adjudications  both  in  this  country  and  in 
England,  we  take  it  up  with  diffidence  that  finds  no  palliative  in  the 
fact  that  the  decision  heretofore  was  by  a  divided  court.  Telegraph 
Co.  V.  Hyer,  22  Fla.  637,  1  South.  129,  1  Am.  St.  Rep.  222.  In  that 
case  the  majority  of  the  court,  while  approving  the  following  well- 
established  rule  first  formulated  in  reference  to  carriers  of  goods  in 
the  cause  celebre  of  Hadley  v.  Baxendale,  9  Exch.  341,  *  *  * 
hold  that  it  has  no  applicability  to  the  contracts  of  telegraph  com- 
panies for  the  transmission  of  messages,  and  that  such  companies  may 
be  justly  considered  and  treated  as  standing  alone — a  system  unto  it- 
self. The  reasoning  leading  to  this  conclusion  is  as  follows:  "The  com- 
mon carrier  charges  different  rates  of  freight  for  different  articles, 
according  to  their  bulk  and  value,  and  their  respective  risks  of  trans- 
portation, and  provides  different  methods  for  the  transportation  of 
each.  It  is  not  shown  here  that  the  defendant  company  had  any  scale 
of  prices  which  were  higher  or  lower,  as  the  importance  of  the  dis- 
patch was  great  or  small.  It  cannot  be  said,  then,  that  for  this  reason 
the  operator  should  be  informed  of  its  importance,  when  it  made  no 
difference  in  the  charge  of  transmission.  It  is  not  shown  that,  if  its 
importance  had  been  disclosed  to  the  operator,  that  he  was  required  by 
the  rules  of  the  company  to  send  the  message  out  of  the  order  in  which 
it  came  to  the  office,  with  reference  to  other  messages  awaiting  trans- 
mission; that  he  was  to  use  any  extra  degree  of  skill,  any  dift'erent 
method  or  agency  for  sending  it,  from  the  time,  the  skill  used,  the 
agencies  employed,  or  the  compensation  demanded  for  sending  an 
unimportant  dispatch,  or  that  it  would  aid  the  operator  in  its  trans- 
mission. For  what  reason,  then,  could  he  demand  information  that 
was  in  no  way  whatever  to  affect  his  manner  of  action,  or  impose  on 
him  any  additional  obligation?  It  could  only  operate  on  him  persua- 
sively to  perform  a  duty  for  which  he  had  been  paid  the  price  he  de- 
manded, which,  in  consideration  thereof,  he  had  agreed  to  perform, 
and  which  the  law,  in  consideration  of  his  promise,  and  the  reception 
of  the  consideration  therefor,  had  already  enjoined  on  him."  The  an- 
swer to  all  this  is  that  the  same  argument  is  equally  applicable  as  a 
reason  why  the  rule  in  Hadley  v.  Baxendale  should  not  apply  to  car- 
riers of  goods  for  hire.  The  carrier  of  goods,  in  contracting  to  carry 
and  deliver,  deals  with  the  tangible.  When  he  contracts,  he  has  in  his 
mind's  eye,  from,  the  visible,  tangible  subject  of  his  contract,  what  will 
be  the  probable  damage  resulting  directly  from  a  breach  of  it  on  his 
part,  and  so  has  the  otl>er  party  to  the  contract  with  the  carrier. 


218  COMPENSATORY   DAMAGES.  (Part    5 

Therefore,  the  damage  Hkely  to  flow  from  a  breach  by  the  carrier  can 
properly  be  said  to  enter  mutually  into  the  contemplation  of  both  par- 
ties to  the  contract,  and  it  is  this  mutuality  in  the  contemplation  of 
both  parties  to  the  contract  of  the  results  that  will  be  likely  to  flow  di- 
rectly from  its  breach  that  really  furnishes  that  equitable  feature  of 
the  rule  that  the  damages  thus  mutually  contemplated  are  in  fact  the 
damages  that  the  law  will  impose  for  the  breach.  Why?  Because,  in 
the  eye  of  the  law,  the  parties  having  mutually  contemplated  such  dam- 
ages in  going  into  such  contract,  those  damages  can  alone  be  inferred 
as  having  entered  into  their  contract  as  a  silent  element  thereof.  The 
rule  in  Hadley  v.  Baxendale  is  applicable  alone  to  breaches  of  contract, 
and  formulates  concisely  the  measure  of  damages  for  the  breach  of 
those  contracts  that  do  not  within  themselves,  in  express  terms,  fix  the 
penalty  to  follow  their  breach.  In  other  words,  this  rule  does  nothing 
more  than  to  give  expression  to  that  part  of  the  contract  which,  in  the 
eye  of  the  law,  has  been  mutually  agreed  upon  between  the  parties, 
but  concerning  which  their  contract  itself  is  silent.  This  essential 
leading  feature  of  the  rule,  we  think,  was  wholly  lost  sight  of  in  the 
discussion  of  the  question  in  Telegraph  Co.  v.  Hyer,  supra,  i.  e.  that 
the  damages  provided  for  under  the  rule  arise  ex  contractu,  and  that, 
unless  there  is  mutuality  in  all  the  essential  elements  that  enter  into 
or  grow  out  of  the  contract,  the  whole  fabric  becomes  unilateral,  and 
abhorrent  in  the  eyes  of  the  law.  The  assertion,  as  a  rule  of  law,  that 
one  party  to  a  contract  shall  alone  have  knowledge  that  a  breach  of 
that  contract  will  directly  result  in  the  loss  of  thousands  of  dollars,  and 
that  upon  such  breach  he  can  recover  of  the  other  party  to  the  contract 
all  of  such,  to  him,  unforeseen,  unexpected,  uncontemplated,  noncon- 
sented-to  damages,  seems  to  us  to  be  a  complete  upheaval  of  all  the 
old  landmarks  in  reference  to  damages  upon  broken  contracts,  and 
the  estabHshment  of  a  new  rule,  that  is  neither  fair,  just,  or  equitable, 
and  which,  if  it  is  to  be  applied  to  the  broken  contracts  of  telegraph 
companies,  must  also,  according  to  every  principle  of  consistency,  be 
applied,  under  like  conditions,  to  every  violated  contract  where  in- 
dividuals are  the  contracting  parties.  The  argument  in  Telegraph  Co. 
V.  Hyer,  supra,  that  it  was  not  shown  that  the  telegraph  company 
would  have  charged  more,  or  used  more  dispatch,  or  taken  more  care, 
or  been  aided  in  any  way  in  the  performance  of  its  duty,  if  it  had  been 
informed  of  the  contents  or  purport  of  the  message  contracted  to  be 
sent  in  that  case,  is  entirely  foreign  to  the  question.  In  arriving  at  the 
rule  of  law  as  to  the  damage  that  parties  to  contracts  are  entitled  to, 
as  matter  of  legal  right,  upon  breach  thereof,  a  consideration  of  any- 
thing that  might  or  might  not  in  fact  have  prevented  the  wrongful 
breach  has  nothing  to  do  with  the  subject  whatever.  But  we  are  to 
look  to  and  consider  the  mutual  rights  of  the  parties  from  the  incep- 
tion of  the  contractual  relations  between  them,  down  through  the  con- 
tract itself,  to  the  breach  complained  of.     One  of  the  primary  rights 


Ch.  1)  DIRECT    AND    CONSEQUENTIAL    DAMAGES.  210 

that  each  party  has,  who  is  about  to  enter  into  a  contract  with  another, 
a  breach  of  which  may  result  in  damage,  is  to  be  so  situated  that  he 
may  foresee  what  direct,  probable  results  will  reasonably,  and  in  the 
usual  course  of  events,  follow  bad  faith,  neglect,  or  other  breach  upon 
his  part.  Why?  Not  that  it  will  or  will  not  in  fact  deter  him  from 
being  delinquent,  but  that  he  may,  if  he  will,  so  act  as  to  guard  against 
and  avoid,  for  his  own  benefit,  the  foreseen,  calamitous  consequence, 
or  that  he  may,  if  he  does  not,  be  held  to  have  knowingly  and  willing- 
ly subjected  himself  to  the  contemplated  consequences  of  his  wrong, 
that,  from  being  foreseen  and  contemplated,  the  law  will  impute  his 
consent  thereto. 

That  the  rule  formulated  in  Hadley  v.  Baxendale,  supra,  is  the  one 
properly  applicable  to  the  contracts  of  telegraph  companies  for  the 
transmission  of  messages  has  the  support  of  the  overwhelming  weight 
of  the  decided  cases,  not  only  as  to  the  numerical  strength  of  the  deci- 
sions concurring  therein,  but  in  the  logical  soundness  of  the  reasoning 
upon  which  their  conclusions  rest,  as  will  be  seen  from  the  following 
authorities.     *     *     * 

In  the  case  at  bar,  the  message  that  it  is  alleged  the  defendant  com- 
pany failed  to  send  was  in  cipher,  and  contained  nothing  that  would  in- 
dicate to  the  defendant's  operator  whether  it  contained  a  criticism  upon 
the  "Horse  Fair"  painting  by  the  great  artist,  Rosa  Bonheur,  named 
in  the  message,  or  whether  it  related  to  a  matter  of  dollars  and  cents. 
There  was  no  explanation  made  to  the  operator  as  to  its  meaning  or 
importance,  except  that  the  plaintiff  said  that  the  word  "gladfulness," 
in  the  message,  had  a  special  meaning.  What  that  special  meaning 
was,  he  did  not  disclose.  Under  these  circumstances,  all  that  the 
plaintiff  could  rightfully  recover  for  the  defendant's  failure  to  send 
or  deliver  the  message  would  be  nominal  damages,  or,  at  most,  the 
sum  paid  by  him  as  the  price  of  its  transmission.  It  was  error,  there- 
fore, for  the  court  to  admit  testimony  as  to  the  damage  sustained  by 
the  plaintiff  by  the  loss  of  sale  of  a  cargo  of  timber  consequent  upon 
the  failure  to  forward  the  message,     *     ♦     * 

Mabry,  J.  (dissenting)  *  *  *  Qver  six  years  ago  this  ques- 
tion was  deliberately  settled  here  by  the  decision  in  the  case  of  Tele- 
graph Co.  V.  Hyer,  22  Fla.  652,  1  South.  129,  1  Am.  St.  Rep.  222.  It 
is  proposed  now  to  reverse  this  case,  and  my  view  is  that  it  should  not 
be  done.  *  *  *  Under  the  decision  in  the  Hyer  Case,  there  was 
a  remedy  for  damages  for  a  failure  on  the  part  of  a  telegraph  com- 
pany to  send  a  cipher  message,  when  it  had,  for  compensation,  agreed 
to  do  so.  There  is  much  merit  in  the  rule  that,  where  the  company 
holds  itself  out  to  the  public  as  a  transmitter  of  cipher  messages  for 
pay,  it  should  not  be  allowed,  after  receiving  the  money  and  agreeing  to 
send  the  message,  to  deny  its  liability  for  damages  resulting  from  its 
own  violation  of  duty  on  the  ground  that  the  message  was  in  cipher, 
and  its  contents  not  known  to  the  company  when  it  agreed  to  send  it. 


220  COMPENSATORY  DAMAGES.  (Part    5 

This  court  having  planted  itself  in  favor  of  this  rule  over  six  years 
ago,  I  do  not  think  we  should  now  disturb  it.  I  do  not  see  how  greater 
harm  will  result  from  adhering  to  the  decision  than  overruling  it.*^ 


III.  Avoidable  Consequences. 
MILLER  V.  TRUSTEES  OF  MARINER'S  CHURCH. 

(Supreme  Judicial  Court  of  Maine,  1830.    7  Me.  51,  20  Am.  Dee.  341.) 

The  action  was  begun  upon  an  assumpsit  to  furnish  a  quantity  of 
hammered  stone  to  be  deUvered  at  Portland  by  June  15,  1828.  The 
stones  were  not  wholly  furnished  until  November  following,  and  the 
defendants  claim  in  offset  damages  occasioned  by  the  breach  of  the 
contract.     Such  damages  were  allowed  to  the  defendants. 

Weston,  J.'*^  *  *  *  j£  ^j^g  party  injured  has  it  in  his  power  to 
take  measures  by  which  his  loss  may  be  less  aggravated,  this  will  be  ex- 
pected of  him.  Thus  in  a  contract  of  assurance,  where  the  assured  may 
be  entitled  to  recover  for  a  total  loss,  he,  or  the  master  employed  by 
him,  becomes  the  agent  of  the  assurer  to  save  and  turn  to  the  best  ac- 
count such  of  the  property  assured  as  can  be  preserved. 

The  purchaser  of  perishable  goods  at  auction  fails  to  complete  his 
contract.  What  shall  be  done?  Shall  the  auctioneer  leave  the  goods 
to  perish,  and  throw  the  entire  loss  upon  the  purchaser?  That  would 
be  to  aggravate  it  unreasonably  and  unnecessarily.  It  is  his  duty  to 
sell  them  a  second  time,  and,  if  they  bring  less,  he  may  recover  the 
difference,  with  commissions  and  other  expenses  of  resale,  from  the 
first  purchaser. 

If  the  party  entitled  to  the  benefit  of  a  contract  can  protect  himself 
from  a  loss  arising  from  a  breach  at  a  trifling  expense,  or  with  reason- 
able exertions,  he  fails  in  social  duty  if  he  omits  to  do  so,  regardless  of 
the  increased  amount  of  damages  for  which  he  may  intend  to  hold  the 
other  contracting  party  liable.  "Qui  non  prohibet,  cum  prohibere  pos- 
sit,  jubet."  And  he  who  has  it  in  his  power  to  prevent  an  injury  to 
his  neighbor,  and  does  not  exercise  it,  is  often  in  a  moral,  if  not  in  a 

47  Tlie  following  are  leading  cases  upon  the  application  of  the  rule  of  Had- 
ley  V.  Baxendale,  ante,  p.  189  to  the  transmission  of  telegrams:  Sanders  v. 
Stuart,  1  C.  P.  Div.  326  (1876) :  Beaupre  v.  P.  &  A.  Tel.  Co.,  21  Minn.  1.55  (1874) ; 
Squire  v.  W.  U.  Tel.  Co.,  98  Mass.  232,  93  Am.  Dec.  157  (1867) ;  Landsberger 
V.  M.  T.  Co.,  32  Barb.  (N.  Y.)  530  (1800) ;  Baldwin  v.  U.  S.  Tel.  Co.,  45  N.  Y. 
744,  6  Am.  Rep.  1G5  (1871) ;  Daugherty  v.  A.  U.  T.  Co.,  75  Ala.  168,  51  Am. 
Rep.  435  (1883),  cipher;  W.  U.  T.  Co.  v.  Fatman,  73  Ga.  285,  54  Am.  Rep. 
877  (1884),  cipher;  Pepper  v.  W.  U.  Tel.  Co.,  87  Tenn.  554,  11  S.  W.  783,  4  L. 
R.  A.  600,  10  Am.  St.  Rep.  699  (189.5) ;  Postal  Tel.  Co.  v.  Lathrop,  131  111.  57.5, 
23  N.  E.  583,  7  L.  R.  A.  474,  19  Am.  St.  Rep.  55  (1890) ;  Rittenhouse  v.  I.  T. 
L.,  44  N.  Y.  263,  4  Am.  Rep.  673  (1870) ;  U.  S.  T.  Co.  v.  Gildersleve,  29  Md. 
232,  90  Am.  Dec.  519  (1868). 

4^  Part  of  the  opinion  is  omitted,  and  the  statement  of  facts  is  rewritten. 


Ch.  1)  AVOIDABLE  CONSEQUENCES.  221 


r  ey . 


legal  point  of  view,  accountable  for  it.    The  law  will  not  permit  him  to^^'^-^ 
throw  a  loss,  resulting  from  a  damage  to  himself,  upon  another,  arisingt^-t--'«'-*;j  7 
from  causes  for  which  the  latter  may  be  responsible,  which  the  party  \^'::^i-w<: 
sustaining  the  damage  might,  by  common  prudence,  have  prevented.  Cxd^z^^^ 
For  example;    a  party  contracts  for  a  quantity  of  bricks  to  build  a,_(^. -f 
house,  to  be  delivered  at  a  given  time;   and  engages  masons  and  car-^^ 
penters  to  go  on  with  the  work.    The  bricks  are  not  delivered.    If  oth-      .^  o^^.^^^ 
er  bricks  of  an  equal  quality,  and  for  the  stipulated  price,  can  be  at  ^'  ^T*-"^ 
once  purchased  on  the  spot,  it  would  be  unreasonable,  by  neglecting  to 
make  the  purchase,  to  claim  and  receive  of  the  delinquent  party  dam-' 
ages  for  the  workmen,  and  the  amount  of  rent  which  might  be  obtain- 
ed for  the  house  if  it  had  been  built.    The  party  who  is  not  chargeable-;  .,~f  ^^ 
with  a  violation  of  his  contract  should  do  the  best  he  can  in  such  cases,    //   /  / 
and,  for  any  unavoidable  loss  occasioned  by  the  failure  of  the  other, 
he  is  justly  entitled  to  a  liberal  and  complete  indemnity.     *     *     *      *»    u-^-^ 

LOKER  V.  DAMON  et  al.  t^-.-^ 

(Supreme  Judicial  Court  of  Massachusetts,  1S35.     17  Pick.  2S4.)  •«^'~.«>'   '-■  ■---  ' 

Trespass  quare  clausum.    The  declaration  set  forth,  that  the  ^^^^"^"\/-/^  .  ^^' 
ants  destroyed  and  carried  away  ten  rods  of  the  plaintiff's  fences,  in  ^^-^^^  ^ 
consequence  of  which  certain  cattle  escaped  through  the  breach  and'' 
destroyed  the  plaintiff's  grass,  and  that  he  thereby  lost  the  profits  of   t\ . 
his  close  from  September,  1832,  to  July,  1833.^° 

Shaw,  C.  J."  *  *  *  The  court  are  of  the  opinion  that  the  di- 
rection respecting  damages  was  right.^/  In  assessing  damages,  the  di- 
rect and  immediate  consequences  of  the  injurious  act  are  to  be  regard-^^  Jj^ 
ed,  and  not  remote,  speculative  and  contingent  consequences,  which  the 
party  injured  might  easily  have  avoided  by  his  own  act.)  Suppose  a 
man  should  enter  his  Deighbor's  field  unlawfully,  and  leave  the  gate 
open;  if,  before  the  owner  knows  it,  cattle  enter  and  destroy  the  crop, 
the  trespasser  is  responsible.  But  if  the  owner  sees  the  gate  open  and 
passes  it  frequently,  and  wilfully  and  obstinately  or  through  gross  neg- 
ligence leaves  it  open  all  summer,  and  cattle  get  in,  it  is  his  own  folly. 
So  if  one  throw  a  stone  and  break  a  window,  the  cost  of  repairing 
the  window  is  the  ordinary  measure  of  damage.  But  if  the  own- 
er suffers  the  window  to  remain  without  repairing  a  great  length  of 
time  after  notice  of  the  fact,  and  his  furniture,  or  pictures,  or  other 
valuable  articles,  sustain  damage,  or  the  rain  beats  in  and  rots  the  win- 
dow, thus  damage  would  be  too  remote.  We  think  the  jury  were 
rightly  instructed,  that  as  the  trespass  consisted  in  removing  a  few  rods 
of  fence,  the  proper  measure  of  damage  was  the  costs  of  repairing  it, 

40  Cf.    Smith  V.  McGuiro,  3  Hurl.  &  X.  554  (1858). 

60  The  statiMiioiit  is  abridged  from  that  in  the  official  report 

81  Tart  of  the  opiuiou  is  omitted. 


t^.^/ 


222  COMPENSATORY   DAMAGES.  (Part    5 

and  not  the  loss  of  a  subsequent  year's  crop,  arising  from  the  want  of 
such  fence.  I  do  not  mean  to  say,  that  other  damages  may  not  be  giv- 
en for  injury  in  breaking  the  plaintiff's  close,  but  I  mean  only  to  say, 
that  in  the  actual  circumstances  of  this  case,  the  cost  of  replacing  the 
fence,  and  not  the  loss  of  an  ensuing  year's  crop,  is  to  be  taken  as  the 
rule  of  damages,  for  that  part  of  the  injury  which  consisted  in  remov- 
ing the  fence  and  leaving  the  close  exposed.     *     *     *  °* 


LAWRENCE  et  al.   v.   PORTER  et  al. 

(Circuit  Court  of  Appeals  of  United  States,  1894.    63  Fed.  G2,  11  C.  C.  A.  27, 

26  L.   R.   A.   167.) 

Before  Taft  and  Lurton,  JJ. 

LuRTON,  J.''^  *  *  *  This  is  an  action  for  breach  of  a  contract  of 
sale  brought  by  the  buyers  against  the  sellers  for  failure  to  deliver  a 
large  quantity  of  lumber  according  to  the  terms  of  the  agreement.  The 
lumber  was  to  be  delivered  by  the  defendants  at  their  mill,  on  vessels 
to  be  furnished  by  the  plaintiffs,  during  the  shipping  season  of  1890. 
As  each  cargo  was  received,  the  buyer  was  to  give  acceptances,  payable 
in  90  days.  After  the  delivery  of  one  cargo,  the  defendants  refused, 
for  no  sufficient  reason,  to  deliver  the  remainder  upon  the  terms  of 
the  bargain,  but  offered  to  supply  the  lumber  needed  to  complete  the 
bill  at  a  reduction  of  50  cents  on  each  1,000  feet,  for  cash  on  delivery 
over  the  rail  of  plaintiffs'  vessels  and  at  the  time  when  delivery  was  re- 
quired by  the  broken  agreement.  The  buyers  stood  upon  their  contract, 
and  demanded  delivery  upon  the  credit  therein  stipulated,  and  refused 
to  take  the  lumber  offered  by  the  delinquent  sellers  on  any  other  terms 
than  those  contained  in  the  agreement.  There  was  evidence  tending  to 
show  that  the  quantity  and  quality  of  lumber  contracted  for,  and  of 
the  dimensions  designated,  could  not  be  procured  at  the  place  of  de- 
livery from  others  than  the  defendants,  or  at  any  other  available  mar- 
ket in  time  for  shipment  according  to  the  terms  of  the  contract;  that 
the  lumber  was  intended  for  resale  at  Tonawanda,  N.  Y. ;  that  de- 
fendants were  so  informed;  and  that  the  market  value  of  such  lumber 
at  Tonawanda,  after  deducting  freight  and  hauling,  was  considerably 
above  the  contract  price.     *     *     * 

The  ground  upon  which  the  defendants  refused  to  carry  out  the 
sale  was  ostensibly  their  unwillingness  to  extend  to  the  plaintiffs  the 
credit  of  90  days  provided  for  in  the  agreement  of  sale.  They  have  not 
endeavored  to  show  that  there  were  any  circumstances  which  justified 
this  breach  of  the  agreement.  Credit  is  often  a  material  element  in  a 
contract  of  sale,  whereby  the  buyer  is  enabled  to  operate  upon  the 
capital  of  the  seller.     Credit  extended  without  interest  is,  in  effect,  a 

6  2  Accord:     Smith  v.  C,  C.  &  D.  R.  R.  Co.,  38  Iowa,  518  (1874). 
6  3  Part  of  the  opinion  is  omitted. 


Ch.  1)  AVOIDABLE    CONSEQUENCES.-..    «.      "♦   •  ''iX^      223  VX-    »,* .    o- 

^        .-      .  ,       ,     •  , ....C,    ^_.  -,     ,     .   .'^     J  _ 

sale  at  the  stipulated  price  less  the  interest  for  the  period  of  credit. 
The  damage  for  a  breach  of  contract  to  pay  money  at  a  particular  date ., 
is  the  lawful  rale  of  interest  for  the  period  of  default,  unless  some  oth-^  '^" 
er  penalty  is  imposed  by  the  agreement.     So  it  would  seem  that  if  the 
buyer,  in  order  to  supply  himself  with  the  articles  which  the  seller  was 
obligated  to  sell,  is  compelled  to  buy  from  another,  and  to  pay  cash,  xXaa^ 
one  element  of  recovery  for  the  breach  would  be  interest  upon  his  pur-    <r>.,>  - '  ■ 
chase  for  the  period  of  credit.    It  is  the  well-settled  duty  of  the  buyer,  .^, 
when  the  seller  refuses  to  deliver  the  goods  contracted  for,  to  do  notli-  '  ,'',       ^^ 
ing  to  aggravate  his  injury.    Indeed,  he  must  do  all  that  he  reasonably  *^^^    ^ 
can  to  mitigate  the  loss.    If  the  buyer  could  have  supplied  himself  with  -^  • 
goods  of  like  kind,  at  the  place  of  delivery  or  other  available  market,  at  ^' 
the  time  the  contract  was  broken,  and  neglected  to  do  so,  whereby  he 
suffered  special  damages  by  reason  of  the  breach,  he  will  not  be  suffer- 
ed to  recompense  himself  for  such  special  damage,  for  the  reason  that 
to  that  extent  he  has  needlessly  aggravated  the  loss.  The  contention  of 
the  plaintiffs  is  that  they  could  not  supply  themselves  at  the  time  the 
contract  was  broken  with  lumber  of  the  qualities  and  sizes  mentioned 
in  their  contract  either  at  the  place  of  delivery  or  at  any  other  available 
market;  that  they  were  not  required  to  buy  from  the  defendants,  who 
were  already  in  default ;  that  to  have  bought  from  them  would  operate 
both  to  encourage  breaches  of  contracts,  and  would  have  been  a  waiver 
of  all  other  right  of  recovery  for  the  breach  of  their  agreement;  that  to 
have  accepted  the  proposal  of  the  defendants  to  supply  them  for  cash  at 
the  reduced  price  would  simply  have  been  to  substitute  one  contract  for 
another,  thereby  enabling  defendants  to  escape  all  liability  for  a  delib- 
erate and  indefensible  violation  of  the  bargain.    They  therefore  insist 
that  the  measure  of  damage  was  the  difference  between  the  contract 
price  and  the  market  value  at  Tonawanda,  N.  Y.,  less  freights  to  that 
point ;   the  evidence  showing  that  the  lumber  was  bought  for  resale  at 
Tonawanda,  and  that  defendants  were  informed  of  that  purpose. 

(For  a  breach  of  contract  of  sale,  the  law  imposes  no  damages  by 
way  of  punishment.  The  innocent  party  is  simply  entitled  to  recover 
his  real  loss."^  If  the  market  value  is  less  than  the  contract  price,  the 
buyer  has  sustained  no  loss.  This  is  axiomatic,  and  needs  no  citation 
of  authority.  If  the  plaintiffs  could  have  bought  at  East  Jordan,  or 
at  any  other  convenient  and  available  market,  at  the  time  of  the  breach, 
lumber  of  like  kinds,  at  the  same  price  or  a  less  price,  it  would  be  clear 
that  they  would  have  sustained  no  general  damages.  If  they  refused 
to  avail  themselves  of  such  opportunity,  and  thereby  sustained  special 
and  unusual  loss,  by  reason  of  not  having  lumber  of  the  kinds  called 
for  by  the  contract,  or  by  being  deprived  of  a  profit  resulting  from  a 
resale  at  Tonawanda,  they  could  not  recover  such  special  damage,  for 
such  damage  m.ight  have  been  avoided  by  replacing  the  undelivered 
lumber  by  other  of  like  kinds.  The  fact  that  they  could  only  buy  from 
the  defendants  does  not  affect  the  duty  of  plaintiffs  to  minimize  their 
;f>.«<;  ;^s  far  as  ihey  reasonably  could.     The  offer  to  sell  for  rn<;h  :t\  a 


224  COMPENSATORY  DAMAGES.  (Part    5 

reduced  price  more  than  equalized  the  interest  for  90  days,  which  was 
the  value  of  credit.  There  seems  to  be  no  insurmountable  objection 
in  thus  permitting  a  delinquent  contractor  to  minimize  his  loss.  The 
obligation  on  the  buyer  to  mitigate  his  loss,  by  reason  of  the  seller's 
refusal  to  carry  out  such  a  sale,  is  not  relaxed  because  the  delinquent 
seller  affords  the  only  opportunity  for  such  reduction  of  the  buyer's 
damage.  Warren  v.  Stoddart,  105  U.  S.  234,  2G  L.  Ed.  1117;  Deere  v. 
Lewis,  51  111.  254.     *     *     * 

The  opinion  in  Warren  v.  Stoddart  rests  upon  the  theory  that  the 
buyer  does  not  surrender  or  yield  any  right  of  action  he  may  have  for 
the  breach  of  contract.  It  rests  wholly  upon  the  duty  of  mitigating  the 
loss  by  replacing  the  goods  by  others,  if  they  are  obtainable  by  reason- 
able exertion.  If  this  duty  be  such  as  to  require  him  to  buy  from  the 
delinquent  seller;  if  the  article  can  be  obtained  only  from  him,  or  be- 
cause he  offers  it  cheaper  than  it  can  be  obtained  from  others,  such  a 
purchase  from  the  seller  is  not  the  abandonment  of  the  original  con- 
tract by  the  substitution  of  another,  nor  would  the  purchase  operate 
to  the  seller's  advantage,  save  in  so  far  as  the  damage  resulting  from 
his  bad  faith  was  thereby  reduced.  If  the  seller  offers  to  sell  for  cash 
at  a  reduced  price,  or  to  sell  for  a  less  price  than  the  market  price, 
though  in  excess  of  the  contiact  price,  with  the  condition  that  it  should 
operate  as  a  waiver  of  the  original  contract,  or  of  any  right  of  action 
for  its  breach,  then  the  buyer  would  not  be  obligated  to  treat  with  the 
seller,  nor  would  the  seller's  offer,  if  rejected,  operate  as  a  reduction 
of  damages. 

Th€  case  of  Deere  v.  Lewis,  cited  above,  was  a  case  much  like  the 
one  under  consideration.  The  goods  could  be  procured  only  from  the 
defendant,  who  offered  the  goods  for  cash  at  5  per  cent,  less  than  the 
contract  price.  It  was  held  that  plaintiff  could  recover  only  nominal 
damages,  inasmuch  as  he  could  have  bought  the  goods  for  less  than  the 
contract  price  from  the  delinquent  seller. 

The  cases  of  Havemeyer  v.  Cunningham,  35  Barb.  (N.  Y.)  515,  and 
Manufacturing  Co.  v.  Randall,  62  Iowa,  244,  17  N.  W.  507,  have  been 
cited  as  sustaining  a  different  rc-.ult.  The  first  case  rested  upon  a  state 
of  facts  very  unlike  those  here  involved.  The  other  seems  to  have  gone 
off  upon  the  apprehension  that,  if  the  buyer  supplied  himself  by  a  pur- 
chase from  the  delinquent  seller,  he  thereby  abandoned  his  contract, 
and  substituted  a  new  agreement  in  place  of  the  broken  bargain.  That 
apprehension  seems  unjustified.  But,  however  that  may  be,  the  case 
of  Warren  v.  Stoddart  is  controlling.  The  offer  after  the  breach  by 
the  defendants  to  sell  the  lumber  necessary  to  complete  the  contract 
was  not  coupled  with  any  condition  operating  as  an  abandonment  of 
t\ie.  contract,  nor  as  a  waiver  of  any  right  of  action  for  damages  for  the 
breach.    *     *     * 


^^    -^i.    '  )^i\4y~U      '■".--'  ^J..<; 


Ch.  1)  AVOIDABLE  CONSEQUENCES.  ^^  tt,^  L»v^  225 

ILLINOIS  CENT.  R.  CO.  v.  COBB,  CHRISTY  &  CO. 
(Supreme  Court  of  Illinois,  1872.     64  111.  12S.) 

Cobb,  Christy  &  Co.  during  the  winter  of  1864-G5  were  engaged  in 
furnishing  corn  at  Cairo  for  the  use  of  the  army  under  a  contract  -^- 
with  the  government.     They  had  made  large  purchases  of  corn  along  i3U>a^' 
the  line  of  the  Illinois  Central  Railroad  Company  through  one  Fallis,  V"^^'/'^' 
who  drew  on  them  for  the  cost  of  the  corn  as  soon  as  he  shipped  it, 
at  the  same  time  forwarding  the  bill  of  lading.    This  action  is  brought   '"'^■^  f"^   ■ 
to  recover  damages  by  reason  of  the  failure  of  the  railroad  company  ^  f  ">•  ^^ 
to  deliver  such  corn  in  a  reasonable  time  at  Cairo,  whereby  the  plain- 
tiffs lost  the  opportunity  of  delivering  the  same  under  their  contract. 

Lawrence.  C.  J.^-^     *     *     *     It  is  also  urged  that  the  plaintiffs 
should  have  gone  into  the  market  at  Cairo  and  have  bought  corn  to 
fill  their  contract,  and  that,  not  having  done  so,  they  can  only  recover 
the  market  price.    However  this  might  be,  if  they  had  not  already  in- 
vested their  money  in  the  corn  in  controversy,  we  can  not  so  hold  in 
the  present  case.     It  would  be  very  unreasonable  to  require  one,  who    "^  ^'f'' 
has  bought  and  paid  for  an  article,  to  have  the  money  in  his  pocket  with    — <  .,'^^^, 
which  to  buy  a  second,  in  case  of  nondelivery  of  the  first.     This  de-  ,''     :^>«v*« 
mand  comes  with  an  ill  grace  from  a  party  by  whose  fault  there  has  -  ,  'wp-t-vuc- 
been  a  failure  of  delivery.     *     *     *     -^tj^,^i3  ,  ^t^^:u.^vv,  «^.-' ^   (^  4^^w 


KADISH  et  al.  v.  YOtJNG  et  al.  cijuL^u, 


v,rv^.u^^ 


(Supreme  Court  of  Illinois,  18S3.     108  111.  170,  43  Am.  Rep.  548.)  ^  U^'^^y^^ufyp 

ScHOLFiELD,  J.  This  was  assumpsit,  by  appellees,  against  appel-  ^-^^^  c^^-^u^ 
lants,  to  recover  damages  sustained  by  the  breach  of  an  alleged  con-  H  tl^-ft-v* 
tract,  whereby,  on  the  15th  of  December,  1880,  appellees  sold  to  ap-  (/  //^ 
pellants  100,000  bushels  of  No.  2  barley,  at  one  dollar  and  twenty  cents  ^  .^.^^^ *^  ^ 
per  bushel,  to  be  delivered  to  appellants,  and  paid  for  by  them,  at  such  '^  J  ": 
time  during  the  month  of  January,  1881,  as  appellees  should  elect.  *^"^^^!r 
Appellees  tendered  to  appellants  warehouse  receipts  for  100,000  bush-^^*^*^ 
els  of  No.  2  barley  on  the  12th  of  January,  1881,  but  appellants  refused  "^^^"'^ 
to  receive  the  receipts  and  pay  for  the  barley.  Within  a  reasonable'^'--^*'^  ^ 
time  thereafter  appellees  sold  the  barley  upon  the  market,  and  having'^^X^ji^-^-tu.  u 
credited  appellants  with  the  proceeds  thereof,  they  brought  this  suit,  N"-«-  o-,^.^  ^ 
and  on  the  trial  in  the  circuit  court  they  recovered  the  difference  be- 
tween the  contract  price  and  the  value  of  the  barley  in  the  market  on 
the  day  it  was  to  have  been  delivered  by  the  terms  of  the  contract. 
Upon  the  trial  appellants  denied  the  making  of  the  alleged  contract, 
that  they  were  partners,  or  that  any  purchase  of  the  barley  was  made  Hul,  CCw**- 

6<  Part  of  the  opinion  is  omitted,  and  the  statement  of  facts  Is  re\\Titten. 
Oii-b.Dam. — 15 


226  COMPENSATORY   DAMAGES.  (Part   5 

for  their  joint  account;  and  they  also  contended,  if  a  contract  was 
shown,  then  that  on  the  next  day  after  it  was  made  they  gave  notice 
to  appehees  that  they  did  not  consider  themselves  bound  by  the  con- 
tract, and  they  would  not  comply  with  its  terms,  and  evidence  was  giv- 
en tending  to  sustain  this  contention.     *     *     * 

The  questions  of  law  to  which  our  attention  has  been  directed  by  the 
arguments  of  counsel,  arise  upon  the  rulings  of  the  circuit  judge  in 
giving  and  refusing  instructions.  He  thus  ruled,  among  other  things, 
that  appellants,  by  giving  notice  to  appellees  on  the  next  day  after  the 
making  of  the  contract  that  they  would  not  receive  the  barley  and 
comply  with  the  terms  of  the  contract,  did  not  create  a  breach  of  such 
contract  which  appellees  were  bound  to  regard,  or  impose  upon  them 
the  legal  obligation  to  resell  the  barley  on  the  market,  or  make  a  for- 
ward contract  for  the  purchase  of  other  barley  of  like  amount  and 
time  of  delivery,  within  a  reasonable  time  thereafter,  and  credit  ap- 
pellants with  the  amount  of  such  sale,  or  give  them  the  benefit  of  such 
forward  contract,  but  that  appellees  had  the  legal  right,  notwithstand- 
ing such  notice,  to  wait  until  the  day  for  the  delivery  of  the  barley  by 
the  terms  of  the  contract,  and  then,  upon  appellants'  failure  to  receive 
and  pay  for  it  on  its  being  tendered,  to  resell  it  on  the  market,  and  re- 
cover from  appellants  the  difference  between  the  contract  price  of  the 
ba^rley  and  its  market  value  on  the  day  it  was  to  have  been  delivered. 
(That  in  ordinary  cases  of  contract  of  sale  of  personal  property  for 
future  delivery,  and  failure  to  receive  and  pay  for  it  at  the  stipulated 
time,  the  measure  of  damages  is  the  difference  between  the  contract 
price  and  the  market  or  current  value  of  the  property  at  the  time  and 
place  of  delivery, ]has  been  settled  by  previous  decisions  of  this  court 
(see  McNaught  v.  Dodson,  49  111.  446;  Larrabee  v.  Badger,  45  111.  440, 
and  Saladin  v.  Mitchell,  Id.  79),  and  is  not  contested  by  appellant's 
counsel.  But  their  contention  is,  that  in  case  of  such  contract  of  sale 
for  future  delivery,  where,  before  the  time  of  delivery,  the  buyer  gives 
the  seller  notice  that  he  will  not  receive  the  property  and  comply  with 
the  terms  of  the  contract,  this,  whether  the  seller  assents  thereto  or  not, 
creates  a  breach  of  the  contract,  or,  at  all  events,  imposes  the  legal  duty 
on  the  seller  to  thereafter  take  such  steps  with  reference  to  the  subject 
of  the  contract,  as,  by  at  once  reselling  the  property  on  the  market  on 
account  of  the  buyer,  or  making  a  forward  contract  for  the  purchase 
of  other  property  of  like  amount  and  time  of  delivery,  shall  most  ef- 
fectually mitigate  the  damages  to  be  paid  by  the  buyer  in  consequence 
of  the  breach,  without  imposing  loss  upon  the  seller.  If  the  buyer 
may  thus  create  a  breach  of  the  contract  without  the  consent  of  the 
seller,  we  doubt  not  the  duty  to  sell,  (where  the  property  is. in  the  pos- 
session of  the  seller  at  the  time,)  at  least  within  a  reasonable  time  after 
such  breach,  will  result  as  a  necessary  consequence  of  the  breach. 
When  the  breach  occurs  by  a  failure  to  accept  and  pay  for  property 
tendered  pursuant  to  the  terms  of  a  contract  at  the  day  specified  for 
its  delivery,  this  is  doubtless  the  duty  of  the  seller,  and  no  reason  is 


Ch.  1)  AVOIDABLE  CONSEQUENCES.  227 

now  perceived  why  it  should  not  equally  result  from  any  breach  of  the 
contract  upon  which  the  seller  is  legally  bound  to  act. 

But  the  well  settled  doctrine  of  the  English  courts  is,  that  a  buyer 
can  not  thus  create  a  breach  of  contract  upon  which  the  seller  is  bound 
to  act.  In  Leigh  v.  Paterson,  8  Taunt.  540,  Phillpotts  v.  Evans,  5 
Mees.  &  W.  475,  Ripley  v.  McClure,  4  Exch.  359,  and,  it  may  be,  also 
in  other  early  cases,  it  was  held  a  party  to  a  contract  to  be  performed 
in  the  future  can  not,  by  merely  giving  notice  to  the  opposite  party 
that  he  will  not  perform  his  part  of  the  contract,  create  a  breach  of 
the  contract.  Subsequently,  however,  in  Cort  v.  Railway  Co.,  6  Eng. 
Law  &  Eq.  230,  and  more  explicitly  in  Hochster  v.  De  Latour,  20 
Eng.  Law  &  Eq.  157,  the  doctrine  was  announced  as  not  in  conflict 
with  previous  decisions,  that  the  party  to  whom  notice  is  given  in  such 
cases  will  be  justified  in  acting  upon  the  notice,  provided  it  is  not  with- 
drawn before  he  acts.  Lord  Campbell,  C.  J.,  in  delivering  his  opinion 
in  the  latter  case,  and  speaking  for  the  court,  used  this  language :  "The 
man  who  wrongfully  renounces  a  contract  into  which  he  has  delib- 
erately entered,  can  not  justly  complain  if  he  is  immediately  sued  for 
a  compensation  in  damages  by  the  man  whom  he  has  injured,  and  it 
seems  reasonable  to  allow  an  option  to  the  injured  party  either  to  sue 
immediately  or  to  wait  till  the  time  when  the  act  was  to  be  done,  still 
holding  it  as  prospectively  binding  for  the  exercise  of  this  option, 
which  may  be  advantageous  to  the  innocent  party,  and  can  not  be 
prejudicial  to  the  wrongdoer."     *     *     * 

Nothing  would  seem  to  be  plainer  than  that  while  the  contract  is 
still  subsisting  and  unbroken,  the  parties  can  only  be  compelled  to  do 
that  which  its  terms  require.  This  contract  imposed  no  duty  upon  ap- 
pellees to  make  other  contracts  for  January  delivery,  or  to  sell  barley 
in  December,  to  protect  appellants  from  loss.  It  did  not  even  contem- 
plate that  appellees  should  have  the  barley  ready  for  delivery  until 
such  time  in  January  as  they  should  elect.  If  appellees  had  then  the 
barley  on  hand,  and  had  acted  upon  appellants'  notice,  and  accepted 
and  treated  the  contract  as  then  broken,  it  would,  doubtless,  then  have 
been  their  duty  to  have  resold  the  barley  upon  the  market,  precisely  as 
they  did  in  January,  and  have  given  appellants  credit  for  the  proceeds 
of  the  sale ;  but  it  is  obviously  absurd  to  assume  that  it  could  have  been 
appellees'  duty  to  have  sold  barley  in  December  to  other  parties  which 
it  was  their  duty  to  deliver  to  appellants,  and  which  appellants  had  a 
legal  right  to  accept  in  January.     *     *     *  oe 

Be  See,  contra.  Roth  v.  Tayson,  12  Times  Law  R.  211  (ISOG). 
See,  also,  cases  herein  under  heading  "Fluctuations  in  Value.** 


228  COMPENSATORY  DAMAGES.  (Part    5 

SUTHERLAND  v.   WYER  et  al. 
(Supreme  Judicial  Court  of  Maine,  1S77.    67  Me.  64.) 

Virgin,  J.^^  The  plaintiff  contracted  with  the  defendants  to  "play 
first  old  man  and  character  business,  at  the  Portland  museum,  and  to  do 
all  things  requisite  and  necessary  to  any  and  all  performances  which" 
the  defendants  "shall  designate,  and  to  conform  strictly  to  all  the  rules 
and  regulations  of  said  theatre,"  for  thirty-six  weeks,  commencing  on 
Sept,  6,  1875,  at  thirty-five  dollars  per  week;  and  the  defendants 
agreed  "to  pay  him  thirty-five  dollars  for  every  week  of  public  theatri- 
cal representations  during  said  season."  By  one  of  the  rules  mention- 
ed, the  defendants  "reserved  the  right  to  discharge  any  person  who 
may  have  imposed  on  them  by  engaging  for  a  position  which,  in  their 
judgment,  he  is  incompetent  to  fill  properly." 

The  plaintiff  entered  upon  his  service  under  the  contract,  at  the 
time  mentioned  therein  and  continued  to  perform  the  theatrical  char- 
acterizations assigned  to  him,  without  any  suggestion  of  incompeten- 
cy, and  to  receive  the  stipulated  weekly  salary,  until  the  end  of  the 
eighteenth  week,  when  he  was  discharged  by  the  defendants,  as  they 
contended  before  the  jury,  for  incompetency  under  the  rule;  but,  as 
the  plaintiff  there  contended,  for  the  reason  that  he  declined  to  accept 
twenty- four  dollars  per  week  during  the  remainder  of  his  term  of 
service. 

Three  days  after  his  discharge  and  before  the  expiration  of  the  nine- 
teenth week,  the  plaintiff  commenced  this  action  to  recover  damages 
for  the  defendants'  breach  of  the  contract.  The  action  was  not  pre- 
mature. The  contract  .was  entire  and  indivisible.  The  performance 
of  it  had  been  commenced,  and  the  plaintiff  been  discharged  and 
thereby  been  prevented  from  the  further  execution  of  it;  and  the  action 
was  not  brought  until  after  the  discharge  and  consequent  breach. 
Howard  v.  Daly,  61  N.  Y.  362,  19  Am.  Rep.  285,  and  cases.     *     *     * 

There  are  several  classes  of  cases  founded  both  in  tort  and  in  con- 
tract, wherein  the  plaintiff  is  entitled  to  recover,  not  only  the  damages 
actually  sustained  when  the  action  was  commenced,  or  at  the  time 
of  the  trial,  but  also  whatever  the  evidence  proves  he  will  be  likely 
to  suffer  thereafter  from  the  same  cause.  Among  the  torts  coming 
within  this  rule,  are  personal  injuries  caused  by  the  wrongful  acts 
or  negligence  of  others.  The  injury  continuing  beyond  the  time 
of  trial,  the  future  as  well  as  the  past  is  to  be  considered,  since  no 
other  action  can  be  maintained.  So  in  cases  of  contract  the  perform- 
ance of  which  is  to  extend  through  a  period  of  time  which  has  not 
elapsed  when  the  breach  is  made  and  the  action  brought  therefor  and 
the  trial  had.  Remelee  v.  Hall,  31  Vt.  582,  76  Am.  Dec.  140.  Among 
these  are  actions  on  bonds  or  unsealed  contracts  stipulating  for  the 

5  7  Part  of  the  opiniou  is  omitted. 


Ch.  1)  AVOIDAP.LE    CONSi:QrF.Nri:S.  ^-^^  fiw-vA*/< 

support  of  persons  during  their  natural  life.     Sibley  v.  Rider,  54  Me.>«i»-<*-*-*^*^ 
4G3;   Philbrook  v.  Burgess,  52  Me.  271.  (^..^Jj^^ 

The  contract  in  controversy  falls  within  the  same  rule.     Although,  ^_^  j.^  .^, 
as  practically  construed  by  the  parties,  the  salary  was  payable  weekly,  ^^^^ij,.^^ 
5till,  when  the  plaintiff  was  peremptorily  discharged  from  all  further j^^  -t^Ci 
service  during  the  remainder  of  the  season,  such  discharge  conferredT^'^'^'**' .     - 
upon  him  the  right  to  treat  the  contract  as  entirely  at  an  end,  and  to  >>»<'^*'^^ 
bring  his  action  to  recover  damages  for  the  breach.     In  such  action  't~ijL^  c^^.\^ 
he  is  entitled  to  a  just  recompense  for  the  actual  injury  sustained  by    lyUl^f'pi 
the  illegal  discharge.     Prima  facie,  such  recompense  would  be  the    ,       /  ^ 
stipulated  wages  for  the  remaining  eighteen  weeks.     This,  however,/  "^" 
would  not  necessarily  be  the  sum  which  he  would  be  entitled  to;    iori>'^^'^ 
in  cases  of  contract  as  well  as  of  tort,  it  is  generally  incumbent  upon-^tr<5^ 
an  injured  party  to  do  whatever  he  reasonably  can,  and  to  improve  all  ^^^  t^ 
reasonable  and  proper  opportunities  to  lessen  the  injury.     *     *     *  ^^.^Cwv 
The  plaintiff  could  not  be  justified  in  lying  idle  after  the  breach;   but     H^^-'  " 
he  was  bound  to  use  ordinary  diligence  in  securing  employment  else-    .^-^^  ( 
where,  during  the  remainder  of  the  term;    and  whatever  sum  he  ac-      ^  ^Jiti- 
tually  earned  or  might  have  earned  by  the  use  of  reasonable  diHgence,  ^^^^T 
should  be  deducted  from  the  amount  of  the  unpaid  stipulated  wages.  "^^^^ 
And  this  balance  with  interest  thereon  should  be  the  amount  of  the<^-^'     ^^ 
verdict.    Applying  the  rule  mentioned,  the  verdict  will  be  found  too;;t^«<*^- 
large.  ^^^^v^yj^^ 

By  the  plaintiff's  own  testimony,  he  received  only  $G0,  from  all  "^ 
sources  after  his  discharge, — $25  in  February,  and  $35  from  the  10th 
to  the  20th  of  April,  at  Booth's.  His  last  engagement  was  for  eight 
weeks,  commencing  April  10th,  which  he  abandoned  on  the  20th,  thus 
voluntarily  omitting  an  opportunity  to  earn  $57,  prior  to  the  expira- 
tion of  his  engagement  with  the  defendants,  when  the  law  required 
him  to  improve  such  an  opportunity,  if  reasonable  and  proper.  We 
think  he  should  have  continued  the  last  engagement  until  May  6th, 
instead  of  abandoning  it  and  urging  a  trial  in  April,  especially  inas- 
much as  he  could  have  obtained  a  trial  in  May  just  as  well.  The  in- 
structions taken  together  were  as  favorable  to  the  defendants  as  they 
were  entitled  to. 

If,  therefore,  the  plaintiff  will  remit  $57,  he  may  have  judgment 
for  the  balance  of  the  verdict;  otherwise  the  entry  must  be  verdict 
set  aside  and  a  new  trial  granted. 


230  COMPENSATORY  DAMAGES.  .  (Part   5 


.I* 

SULLIVAN  et  al.  v.  McMILLAN  et  al. 


(Supreme  Court  of  Florida,  1896.     37  Fla.  134,   19   South.  340, 
53  Am.  St.  Rep.  239.) 

McMillan  and  Wiggins  agreed  to  cut  and  deliver  to  Sullivan,  since 
deceased,  all  the  logs  of  certain  specified  dimensions  and  free  from 
certain  specified  defects  growing  upon  certain  described  lands  of  the 
decedent.  Many  logs  were  duly  delivered  pursuant  to  the  contract ; 
but,  following  the  death  of  Sullivan,  his  representative  refused  to  re- 
ceive any  further  logs,  whereupon  this  action  was  brought  for  damages 
sustained  by  McMillan  and  Wiggins  under  the  contract. 

LiDDON,  J.^^  *  *  *  It  is  urged  by  appellants  that  the  plaintiffs, 
when  they  received  notice  that  the  defendants  would  not  further  com- 
ply with  or  perform  the  contract,  should  have  done  all  that  reason- 
ably lay  within  their  power  to  protect  themselves  from  loss  by  seek- 
ing another  contract  of  like  character,  and  that,  the  plaintiffs  hav- 
ing sought  and  obtained  such  a  contract  immediately  after  the  breach 
sued  upon,  the  defendants  were  entitled  to  have  a  proportionate  amount 
of  the  profits  applied  in  mitigation  of  the  damages  for  which  they  were 
liable.  Otherwise  it  is  contended  that  the  plaintiffs  would  make  two 
profits  for  the  same  time,  and  with  the  same  teams,  and  that  specula- 
tion would  be  substituted  for  compensation,  which  is  the  basis  of  the 
law  of  damages  for  breaches  of  contract.  These  propositions  are  un- 
doubtedly correct  when  applied  to  some  classes  of  cases.  They  have 
special  reference  to  contracts  for  personal  services,  or  for  the  use  of 
some  special  instrumentality,  either  with  or  without  connection  with 
such  personal  services.  Thus,  in  a  contract  for  teaching  in  a  school, 
which  was  broken  by  a  refusal  to  receive  the  services,  it  was  held  to 
be  the  plaintiff's  duty  to  make  reasonable  exertion  to  obtain  other  like 
employment  in  the  same  vicinity,  and  thus  mitigate  the  damages.  Gil- 
lis  V.  Space,  63  Barb.  (N.  Y.)  177;  Benziger  v.  Miller,  50  Ala.  20G. 
The  same  rule  was  laid  down  for  a  similar  breach  of  a  contract  with 
an  actress.  Howard  v.  Daly,  61  N.  Y.  362,  19  Am.  Rep.  285.  Where 
the  plaintiff,  owner  of  a  portable  saw  mill,  agreed  to  remove  it  to  the 
farm  of  the  defendant,  and  to  saw  a  stated  number  of  logs,  to  be  fur- 
nished by  the  defendant,  during  certain  seasons  of  the  year  1865,  and 
the  defendant,  after  furnishing  a  portion,  broke  his  contract  by  re- 
fusing to  furnish  more  of  such  logs,  but  during  the  time  he  (plaintiff) 
would  have  been  engaged  in  sawing  defendant's  logs  he  was  offered 
other  employment  of  the  same  kind,  so  that  his  mill  need  not  have 
been  idle,  it  was  held  that  the  damages  caused  by  the  breach  sued  up- 
on should  have  been  mitigated.  Heavilon  v.  Kramer,  31  Ind.  241. 
*     *     * 

The  contract  which  was  broken  in  the  present  case  was  not  one  for 
personal  services,  nor  one  which  the  parties  contemplated  should  be 

5s  Part  of  the  opinion  is  omitted,  and  the  statement  of  facts  is  rewritten. 


Ch.  1)  AVOIDABLE  CONSEQUENCES.  231 

performed  with  any  special  means  or  instrumentality.  It  was  simply 
a  contract  for  the  delivery  of  certain  logs  at  a  certain  place,  and  might 
have  been  performed  by  the  plaintiffs  with  their  own  teams  and  per- 
sonal labor,  or  by  any  other  means  or  agency  to  which  they  might  have 
seen  fit  to  intrust  the  performance  of  the  same.  There  is  nothing  in 
the  contract  to  show  that  the  execution  of  the  same  required  all  or  any 
great  portion  of  the  time  or  personal  attention  of  both  or  either  of  the 
plaintiffs;  or  that  it  was  impracticable  for  plaintiffs  to  be  engaged  in 
other  business  and  the  performance  of  other  contracts  contemporane- 
ously with  the  performance  of  the  contract  in  controversy.  We  do 
not  think  the  rule  invoked  as  to  mitigation  of  damages  by  subsequent 
earnings  and  profits  applies  to  this  case.  A  distinction  is  recognized 
between  a  case  of  the  character  of  that  now  before  us,  and  those  to 
which  we  have  alluded.     *     *     * 

There  was  no  legal  obligation  upon  the  plaintiffs  in  this  case  to  en- 
ter upon  the  performance  of  other  contracts  for  the  benefit  of  the  de- 
fendants. The  Supreme  Court  of  Wisconsin,  in  Cameron  v.  White, 
74  Wis.  425,  43  N.  W.  155,  5  L.  R.  A.  493,  where  a  contention  like 
that  of  appellants  in  this  case  was  made,  as  we  think  properly  said : 
"As  the  plaintiffs  could  not  enhance  the  damages  against  the  defend- 
ant by  their  neglect  to  make  the  best  of  what  they  had  on  their  hands, 
so  they  are  not  bound  to  lessen  the  damages  by  making  other  con- 
tracts, and  performing  them,  and  giving  the  benefit  of  the  performance 
of  such  contracts  to  the  defendant."  A  very  full  exposition  of  this 
subject,  showing  the  difference  in  the  rules  applicable  to  contracts  for 
personal  service  and  those  for  the  doing  of  a  specific  act,  can  be  found 
in  Watson  v.  Brick  Co.,  3  Wash.  283,  28  Pac.  527.  This  discussion 
is  too  lengthy  to  insert  entire  in  this  opinion.  The  gist  of  the  whole 
matter,  the  conclusion  of  the  court,  citing  Wolf  v.  Studebaker,  Go  Pa. 
459,  is  thus  stated :  "The  duty  to  seek  employment  is  dependent  upon 
the  original  contract  being  one  of  employment  or  hire.  It  is  not  ap- 
plicable to  every  contract.  *  *  *  Ordinary  contracts  of  hire  and 
contracts  for  the  performance  of  some  specified  undertaking  cannot  be 
governed  by  the  same  rule.  That  in  one  case  the  party  can  earn  no 
more  than  the  wages,  and  if  he  gets  that  his  loss  will  be  but  nominal; 
whereas,  in  the  other  case,  the  loss  of  the  party  is  the  loss  of  the  bene- 
fit of  the  contract.  The  damages  may  be  said  to  be  fixed  by  the  la^\ 
of  the  contract  the  moment  it  is  broken,  and  cannot  be  altered  by  col- 
lateral circumstances  independent  of  and  totally  disconnected  from  it. 
and  from  the  party  occasioning  it.  To  plead  the  doctrine  of  avoidable 
consequences  to  such  case,  *  *  *  'would  necessarily  involve  proof 
of  everything,  great  and  small,  no  matter  how  various  the  items  done 
by  the  plaintiff  during  the  period  of  the  contract  might  be,  and  how 
much  he  made  in  the  meantime.'  *  *  *  jf  the  rule  was  to  be  ob- 
served that  the  damages  proven  must  be  direct  and  proximate,  the 
same  rule  must  be  invoked  in  the  reduction  of  damages."  In  Crescent 
Manuf'g  Co.  v.  N.  O.  Nelson  Manuf'g  Co.,  100  Mo.  325,  13  S.  W. 


232 


COMPENSATORY  DAMAGES.  (Part    5 


503,  where  an  attempt  was  made  to  offer  evidence  similar  to  that  ex- 
cluded in  the  present  case,  it  was  said:  "Where  a  servant  is  wrong- 
fully discharged  during  his  term,  and  lays  his  damages  at  the  contract 
wages  for  the  balance  of  the  term,  it  is  generally  held  that  evidence 
may  be  introduced  in  mitigation  of  damages  of  what  he  might  have 
earned  in  the  interim  by  using  reasonable  efforts  to  procure  other  em- 
ployment. So,  in  general,  where  a  party  has  been  injured  or  damaged 
by  a  breach  of  a  contract,  he  should  do  whatever  he  can  to  lessen  the 
injury.  Many  cases  asserting  these  principles  of  law  are  cited  by  the 
defendant,  but  they  have  no  application  to  the  case  in  hand.  (The 
plaintiff  owned  its  factory  and  the  machinery,  and  the  contract  con- 
stituted no  such  relation  as  that  of  master  and  servant.  It  had  the 
right  to  make  as  few  or  as  many  other  contracts  as  it  saw  fit  while 
executing  the  contract  with  defendant,  and  it  is  entitled  to  the  profits 
which  it  might  have  made  on  this  particular  contract.  The  evidence 
offered  in  mitigation  of  damages  was  properly  excluded."     *     *     * 

The  second  matter,  as  already  stated,  is  whether  any  interest  is  re- 
coverable. *  *  *  "There  are  two  tests  which  are  constantly  ap- 
plied by  the  courts,  having  been  found  by  them  more  useful  than  the 
attempted  division  into  liquidated  and  unliquidated  demands.  Of  these 
the  first  is  whether  the  demand  is  of  such  a  nature  that  its  exact  pe- 
cuniary amount  was  either  ascertained  or  ascertainable  by  simple  com- 
putation, or  by  reference  to  generally  recognized  standards,  such  as 
market  price;  second,  whether  the  time  from  which  interest,  if  al- 
lowed, must  run — that  is,  a  time  of  definite  default  or  tort  feasance, 
— can  be  ascertained."     *     *     * 

Without  setting  forth  even  a  brief  summary  of  the  evidence  in  the 
case,  we  think  it  sufficient  to  say  that  it  was  so  exact  and  definite  as 
to  the  amount  of  damage  sustained  by  the  plaintiffs,  and  the  elements 
of  the  same,  that  it  only  required  a  simple  computation  by  the  jury  to 
fix  the  amount.  We  think  the  case  falls  within  the  rule  stated,  that 
the  damages  could  be  readily  liquidated  and  ascertained  by  the  jury 
by  simple  computation,  and  that  the  plaintiffs  were  entitled  to  inter- 
est thereon.     *     *     *  59 


59Danforth,  J.,  in  Fuchs  v.  Koemer,  107  N.  T.  529,  14  N.  E.  445  (1887): 
"On  the  ninth  of  February,  1884,  the  defendant,  T.  E,  Koemer,  engaged 
the  plaintiff,  Herman  Fuchs,  'for  his  business  in  essential  oils  and  essences 
for  one  year,'  from  the  sixth  of  February,  1884.  for  the  yearly  wages  of 
$1,800,  in  weekly  payments  of  $37.50.  The  plaintiff  served  under  that  agree- 
ment until  July  6,  1SS4,  when  the  defendant  closed  up  his  business,  and 
for  that  reason  discharged  the  plaintiff.  He  nevertheless  reported  daily  to 
the  defendant,  and  also  sought  employment  elsewhere.  The  defendant  of- 
fered to  employ  him  in  making  and  selling  fancy  boxes.  This  he  declined, 
but  in  fact  earned  $15  in  other  ways.  He  sued  to  recover  damages  for  the 
breach  of  the  agreement,  and  the  jury  awarded  him  $712.  *  "*  *  The 
learned  trial  judge  charged  the  jury  that  it  was  the  plaintiff's  duty  to  use 
reasonable  diligence  in  procuring  another  place  of  the  same  kind  in  order  to 
relieve  the  defendant,  as  much  as  possible,  from  the  loss  consequent  upon 
his  breach  of  couti-act.  but  that  he  was  not  bound  to  accept  occupation  of 
another  kind.     An  exception  to  this  qualification  presents  the  only  question 


Ch.  1)  AVOIDABLE    CONSEQUENCES.  ^   ^  ;  ^     w-x^^'Vr 

WHITMARSH  v.  LITTLEFIELD  et  al. 
(Supreme  Court  of  New  York,  1SS7.    4G  Ilun,  418.)  ./'    v^-tbV-ct** 

The  action  was  brought  to  recover  damages  for  the  breach  of  a  -  ^ 
contract,  by  which  the  defendants  hired  the  plaintiff  to  assist  in  load-"^*^ 
ing  ice  boats  at  an  agreed  price  of  two  dollars  per  day  while  the  old 
ice  lasted,  and  one  dollar  and  seventy-five  cents  per  day  for  the  bal- 
ance of  the  season,  until  the  close  of  navigation,  on  or  about  December 
5,  18S6.  The  complaint  alleged  the  defendants  discharged  the  plain- 
tiff on  or  about  August  30,  1886. 

Learned,  P.  J.^°  *  *  *  f^g  alleged  contract  found  by  the  ju- 
ry was  that  plaintiff  was  to  work  as  long  as  the  old  ice  lasted  for  two 
dollars  per  day.  There  was  evidence  that  when,  as  the  jury  found,  the 
defendants  broke  this  contract,  that  the  defendants  offered  to  pay  one 
dollar  and  seventy-five  cents  per  day,  for  the  work  on  the  old  ice; 
as  is  fully  stated  thereafter.  And  the  principal  question  here  relates 
to  the  ruling  on  this  point.  The  court  directed  the  jury  to  deduct  what 
plaintiff  had  received  for  his  services;  but  declined  to  direct  them 
to  deduct  what  plaintiff  had  an  opportunity  to  earn  in  work  of  a  simi- 
lar character.  Now,  the  opportunity  referred  to  was  the  offer  of  de- 
fendants to  pay  one  dollar  and  seventy-five  cents  for  the  same  work 
for  which  they  had  contracted  to  pay  two  dollars.  The  defendant's 
counsel  cites  Bigelow  v.  American  F.  P.  Company,  39  Hun,  599.  In 
that  case  after  defendants  had  distinctly  discharged  plaintiff  from  their 
service,  they  directed  him  to  go  to  Panama,  and  he  refused.  The  court 
held  that  the  offer  by  defendants  in  the  same  line  of  business,  and 
plaintiff's  refusal  should  have  been  admitted  to  diminish  the  damages, 
because  it  tended  to  show  what  he  might  have  earned. 

There  is  a  distinction  between  that  case  and  the  present.  It  does 
not  appear  that  in  that  case  the  defendants,  when  they  proposed  to  dis- 
charge him,  offered  to  employ  him  at  a  less  salary  to  do  the  work  for 
which  they  had  originally  contracted.  But,  in  this  case,  to  take  the 
defendant's  own  statement,  Littlcficld  said  to  the  plaintiff  and  others 
"that  I  could  not  pay  them  two  dollars  any  longer;  that  I  would  like 
to  have  them  go  in  the  boat  and  work  the  same  as  they  had  before, 
for  fourteen  shillings."  And  as  another  of  defendant's  witnesses  says 
in  another  place,  he  told  them  he  wanted  them  to  consider  the  matter 
and  go  to  work  for  fourteen  shillings.  Now,  this  was  a  plain  proposi- 
tion to  give  up  the  old  arrangement  or  contract  and  accept  a  new  one. 
That  is,  to  continue  in  the  same  employment  at  a  less  price.  If  the 
plaintiff  and  the  others  had  acceded  to  this,  tliey  would  have  virtually 

raised  upon  this  appeal,  and  it  must  lie  answered  in  favor  of  the  plaintiff. 
He  was  ready  during  the  entire  year  to  perform  his  agreement,  and  could 
not  be  required  to  enter  upon  a  new  business,  or  one  different  from  that 
which  he  had  undertalien." 

60  I'art  of  the  opinion  Is  omitted- 


234  COMPENSATORY  DAMAGES.  (Part    5 

surrendered  the  old  contract  and  have  made  a  new.  No  one  could 
understand  the  transaction  otherwise  than  as  a  change  or  modification 
of  the  old  arrangement.  And  if  the  plaintiff  and  the  others  had  there- 
upon gone  on  and  worked  for  the  defendants,  they  never  could  have 
recovered  more  than  the  one  dollar  and  seventy-five  cents  per  day. 

Of  course  when  a  contract  has  been  broken  by  one  party  and  the 
parties  make  thereafter  a  new  contract,  the  new  contract  does  not  nec- 
essarily take  away  the  action  for  damages  for  the  breach.  McKnight 
V.  Dunlop,  5  N.  Y.  537,  55  Am.  Dec.  370.  But  on  the  other  hand,  the 
parties  to  a  contract  may  modify  it  by  mutual  consent.  And  the  prop- 
osition made  by  defendant  Littlefield,  if  acted  upon  by  plaintiff  and 
others,  would  plainly  have  been  such  a  modification.  Under  the  facts 
of  this  case,  therefore,  we  do  not  think  it  necessary  to  pass  on  the 
question  whether  if  a  fair  and  distinct  offer  of  employment  had  been 
made  by  defendants  which  plaintiff  had  refused,  this  should  have  been 
considered  in  diminution  of  damages.  It  might  be  questionable  wheth- 
er plaintiff  was  bound  to  enter  into  another  contract  with  those  who 
had  broken  the  former.  But  it  is  enough  to  say  that  the  proposition 
of  Littlefield  over  which  only  the  question  arises,  was  under  the  cir- 
cumstances, a  proposition  to  abandon  the  old  and  to  form  a  new  con- 
tract. The  recovery  for  the  whole  time  seem  to  be  justified  by  Ever- 
son  V.  Powers,  89  N.  Y.  537,  42  Am.  Rep.  319.     *     *     *  ei 


YORTON  V.  MILWAUKEE,  L.  S.  &  W.  R.  CO. 

(Supreme  Court  of  Wisconsin,  1884.    02  Wis.  367,  21  N.  W.  516,  23  N.  W.  401.) 

The  plaintiff  delivered  his  ticket  from  Marion  to  Oshkosh  to  one 
Sherman,  conductor  of  defendant's  train,  asking  for  a  stop-over  check 
at  Clintonville.  The  conductor  by  mistake  gave  him  a  trip  check  in- 
stead, and  when  plaintiff  got  upon  the  second  train  later  at  Clinton- 
ville, after  a  stop  over,  Bartlett,  the  conductor  thereof,  refused  to 
honor  the  trip  check  for  further  passage  under  the  rules  of  the  com- 
pany. Plaintiff  left  the  train  under  the  orders  of  Bartlett,  after  re- 
fusing to  pay  the  fare  to  his  destination,  which  amounted  to  $1.85, 
The  plaintiff  by  reason  of  exposure  became  sick. 

61  But  see  Bigelow  v.  A.  F.  P.  M.  Co.,  39  Hun,  598  (1886),  and  Heilbroner 
V.  Hancock,  33  Tex.  714  (1871). 

On  the  duty  of  a  discharged  employe  to  secure  re-employment,  see,  further, 
Williams  v.  C.  Coal  Co.,  60  111.  149  (1871);  Howard  v.  Daly,  61  N.  Y.  362, 
19  Am.  Rep.  285,  post,  p.  313  (1875) ;  Ream  v.  Watkins,  27  Mo.  516,  72  Am. 
Dec.  283  (1S5S);  Huntington  v,  Ogdensbuvgh,  33  How.  Prac.  (N.  Y.)  416  (1867); 
Harrington  v.  Gies,  45  Mich.  374,  8  N.  W.  87  (1881) ;  Lee  v.  Hampton,  79 
Miss.  321,  30  South.  721  (1901).  But  that  the  duty  does  not  arise  upon  the 
bi-each  of  all  contracts  of  employment,  see,  in  accord  with  Sullivan  v.  Mc- 
Millen,  37  Fla.  134,  39  South.  340,  53  Am.  St.  Rep.  239  (1896),  Wolf  v.  Stude- 
baker,  65  Pa.  459  (1870).  CTescent  Mfg.  Co.  v.  Nelson  Mfg.  Co.,  100  Mo.  325,  13 
S.  W.  503  (1889),  and  Watson  v.  Gray's  H.  B.  Co.,  3  Wash.  283,  28  Pac.  527 
(1891). 


Ch.  1)  ^*~1yoIDABLE  CONSEQUENCES.  ,^^^  j-j^^^^^O    ,_.._, -^ 

Cole,  C.  J."*  *  *  *  It  is  not  entirely  clear  from  the  complaint^o  o-v^-A'-tJA 
whether  the  action  is  for  a  breach  of  contract,  or  for  a  violation  of  du-  Cww-j^a^-v^-*- 
ty  as  common  carrier,  though  we  assume  that  it  is  of  the  latter  charac-  -r^^^-^*^ 
ter.    But  it  can  make  no  essential  difference  as  to  the  rule  of  damages^  ~ 

upon  the  facts  proven.  Whatever  damages  the  plaintiff  can  show  he 
sustained,  which  were  the  direct  and  natural  consequence  of  the  inju- 
rious act  of  Conductor  Sherman,  these  the  plaintiff  may  recover. 

The  learned  counsel  for  the  defendant  says  that  the  only  natural 
and  legitimate  result  of  that  act  was  to  compel  the  plaintiff  to  again 
pay  his  fare  from  Clintonville  to  Oshkosh.  This  might  have  been  the 
only  loss  the  plaintiif  sustained  from  the  mistake  of  Conductor  Sher- 
man had  he  seen  fit  to  pay  his  fare.  But  he  did  not  do  this,  and  exer- 
cised the  option  which  the  law  gave  him,  of  leaving  the  train  and  look- 
ing to  the  company  for  redress.  The  same  counsel  further  says  the 
plaintiif  might  have  protected  himself  from  all  loss  or  inconvenience 
arising  from  the  fault  or  mistake  of  the  first  conductor  at  a  trilling 
expense,  and  that  he  failed  in  a  social  duty  by  omitting  to  do  so.  The 
jury  found  that  he  had  sufficient  money  with  him  when  on  the  second 
train  to  have  paid  his  fare  from  Clintonville  to  Oshkosh.  But  was  he 
under  any  legal  obligation  to  pay  the  additional  fare  exacted?  He  had 
once  paid  for  a  ticket  to  Oshkosh,  and  claimed  the  right  to  ride  to  his 
destination.  Probably  most  persons  having  the  ability  would,  under 
like  circumstances,  pay  the  additional  fare  rather  than  submit  to  the 
inconvenience  and  delay  of  leaving  the  train  at  that  hour  and  place. 
But,  as  we  have  said  before,  we  think  the  plaintiff  had  the  option  ei- 
ther to  pay  or  leave  the  train  and  resort  to  his  legal  remedy.  There 
are  men  who,  in  social  life  and  business  matters,  act  upon  the  maxim, 
"■Millions  for  defense,  but  not  a  cent  for  tribute;"  in  other  words,  men 
who  stand  upon  their  strict  legal,  rights.  There  is  certainly  a  class  of 
cases  where  the  law  imposes  upon  a  party  injured  by  another's  breach 
of  contract  or  tort  the  duty  of  making  reasonable  exertions  to  ren- 
der the  injury  as  light  as  possible. 

Counsel  have  referred  to  authorities  which  affirm  that  rule  of  law. 
They  have  also  cited  cases  which  hold  that  a  passenger  cannot  insist 
upon  remaining  on  the  train  without  paying  fare,  in  order  that  force 
shall  be  used  for  his  expulsion  and  then  claim  damages  for  the  force 
thus  used.  But  we  have  not  been  referred  to  a  case  analogous  to  this, 
which  decides  that  it  was  tlie  duty  of  the  plaintiff  to  have  paid  the  fare 
exacted  and  remain  on  the  train,  in  order  to  protect  the  company 
against  the  consequences  of  the  mistake  or  fault  of  the  first  conductor. 
According  to  our  view,  the  law  imposed  upon  him  no  such  duty.  On 
the  contrary,  when  he  was  ordered  to  leave  the  train  or  pay  the  addi- 
tional fare,  he  had  an  election  to  leave,  or  remain  on  the  condition  of 
paying.  Having  concluded  to  leave,  he  has  his  remedy  against  the 
company   for  his  damages,  which  are  not  necessarily  limited  to  the 

0  2  Tart  of  the  oplulon  Is  omlttod,  and  the  statement  of  facts  is  rewritten. 


236  COMPENSATORY  DAMAGES.  (Part    5 

additional  fare  paid  subsequently  to  go  to  Oshkosh,  and  interest  there- 
on. The  law  allows  him  to  recover  full  compensation  for  the  damages 
he  sustained  by  reason  of  the  fault  of  the  first  conductor.     *     *     *  03 


LOESER  et  al  v.  HU^IPHREY. 

(Supreme  Court  of  Ohio,  1884.     41  Ohio  St.  378,  52  Am.  Rep.  8G.) 

DiCKMAN,  J.®*  The  original  action  was  brought  in  the  court  of 
common  pleas  of  Cuyahoga  county  by  Edward  Humphrey  against 
Loeser  &  Co.  for  alleged  carelessness  in  leaving  their  horse  insecurely 
tied,  whereby  he  broke  away  and  ran,  with  the  wagon  to  which  he  was 
harnessed,  into  the  wagon  of  Humphrey,  and  severely  injured  him  in 
his  person.  At  the  trial  the  plaintiff  gave  testimony  tending  to  prove 
that  by  reason  of  the  collision  and  accident  the  plaintiff  had  suffered 
a  concussion  of  the  spinal  cord  and  brain,  resulting  in  an  injury  to 
his  eyesight,  which  was  thereby  much  impaired;  and  that  in  conse- 
quence of  his  injuries  his  ability  to  walk  was  also  much  impaired,  with 
other  consequential  damage.  The  defendants,  to  maintain  the  issue 
on  their  part,  gave  testimony  tending  to  prove  that  the  ordinarily  ap- 
proved medical  treatment  in  such  cases  was  to  administer  currents  of 
electricity  to  the  patient  and  the  injured  parts,  and  that,  if  such  had 
been  done  in  the  present  case,  the  condition  of  the  plaintiff  would  have 
been  better  than  it  was;  that  for  want  of  such  treatment  his  condition 
was  rendered  worse,  and  more  likely  to  be  permanent  than  it  would 
have  been  had  electricity  been  applied.     *     *     * 

The  court  charged  in  reference  to  the  medical  treatment  of  the 
plaintiff  for  his  injuries  as  follows:  *  *  *  "After  the  plaintiff 
was  injured  he  was  bound  to  use  ordinary  care  and  prudence,  under 

6  3  Granger,  J.,  in  Ellsworth  v.  U.,  B.  &  Q.  R.  R.,  95  Iowa,  98,  63  N.  W.  584, 
29  L.  R.  A.  173  (1895). 

"The  more  difficult  question  is  as  to  his  remedy  for  the  wrong  done  him; 
that  is,  when  the  conductor  refused  to  accept  the  ticket  because  of  its  date, 
had  the  plaintiff  the  legal  right  to  insist  on  a  passage  on  that  train,  and  resist 
removal  therefrom,  or  should  he  have  paid  his  fare,  as  demanded,  and  sought 
redress  from  the  company  on  that  basis,  or,  not  wishing  to  do  that,  should 
he,  on  request  of  the  conductor,  to  avoid  damage,  have  left  the  train  without 
resistance,  and  based  his  damage  on  the  mistake  in  selling  him  the  ticket? 
*  *  *  A  thought  in  argument  is,  and  some  language  of  the  opinions  re- 
ferred to  seems  to  favor  it,  that  it  is  the  duty  of  the  passenger  to  not  en- 
hance damages  by  resistance,  because  it  is  of  no  use,  but  that  he  should  submit 
quietly  to  ejectment,  and  then  seek  his  damages.  To  say  the  least,  we  think 
he  may  make  any  resistance,  not  amounting  to  a  criminal  disturbance  of 
the  peace,  as  was  done  in  this  case,  and  that  he  is  not  called  upon  to  submit 
to  a  wrongful  ejection  for  the  purpose  of  economizing  the  damages  to  be  re- 
covered." 

6 1  Part  of  the  opinion  is  omitted. 


■^  ti.   .Jij^j-tf^^^A.'  Jerk 

^^  ^^^^^^y  ^..r^X^  XU^-^- 

Ch.!)*^"*""^   *^*^^  'avoiSable^consequen'ces.  237  m<X»/ ^^ 

all  the  circumstances,  to  take  care  of  himself  and  his  wounds;    and  tXv  C-os.-*t 
if  he  employed  a  physician  of  good  standing  and  reputation,  supposing   ^  \■^^%..^y^, 
and  having  reason  to  think  he  was  such,  and  who  in  fact  was  such — as    T^^_^  ^     ' 
it  is  admitted  he  was  in  this  case— then,  though  the  physician  may  not^^^^^ 
have  used  all  the  approved  remedies,  or  that  remedy  which  would    ^^^^^v^    ' 
have  been  most  suitable  in  the  case,  or  which  a  good  medical  man    'p'*^*V*^ 
would  have  used  under  the  circumstances,  and  on  account  of  the  fail-  ' 
ure  to  use  such  usual  or  proper  remedy  his  condition  is  worse  than  it 
would  be  had  it  been  used,  still  plaintiff  may  recover  for  his  actual  a^'|*->v-»^ 
damages,  if  he  himself  has  not  been  negligent;  and  such  treatment  orOiu.    '     ' 
failure  to  use  such  remedy,  merely,  will  not  prevent  him  from  recover-  ^^^^ 
ing  the  full  extent  of  his  injuries  as  aforesaid."     *     *     *  A;^^y^. 

There  can  be  no  dispute  but  that  Humphrey  acted  in  good  faith, 
showed  due  diligence,  and  used  reasonable  means  to  effect  his  cure  and 
restoration.  He  employed  a  physician  "of  good  standing  and  repu-  -  ■ 
tation."  It  was  not  incumbent  upon  him  to  incur  the  greatest  expense,  ^. . 
and  call  in  the  most  eminent  physician  or  surgeon  of  the  highest  pro- 
fessional skill  and  most  infallible  judgment,  before  he  could  hold  the 
defendants  answerable  for  the  condition  in  which  he  was  left  at  the 
end  of  his  medical  treatment.  Having  exercised  ordinary  care  and 
reasonable  judgment  in  selecting  a  physician,  he  was  not  required,  as 
said  by  the  court,  in  Stover  v.  Bluehill,  51  Me.  439,  "to  insure,  not  on- 
ly the  surgeon's  professional  skill,  but  also  his  immunity  from  acci- 
dent, mistake,  or  error  in  judgment,"  in  order  to  recover  of  the  orig- 
inal wrongdoer  damages  arising  from  no  fault  on  his  part,  and  from 
causes  beyond  his  power  to  control. 

It  seems  to  be  well  settled  that,  where  one  is  injured  by  the  negli- 
gence of  another,  if  his  damage  has  not  been  increased  by  his  own 
subsequent  want  of  ordinary  care,  he  will  be  entitled  to  recover  of  the 
wrongdoer  to  the  full  extent  of  the  damage,  although  the  physician 
whom  he  employed  omitted  to  apply  the  remedy  most  approved  in  sim- 
ilar cases,  and  by  reason  thereof  the  damage  of  the  injured  party  was 
not  diminished  as  much  as  it  otherwise  would  have  been.  Lyons  ) 
V.  Railway  Co.,  57  N.  Y.  489;  Tuttle  v.  Farmington,  58  N.  H. 
13      *     *     * 

The  collision  must  be  treated  as  the  proximate  cause  of  Humphrey's 
damage.  It  was  that  that  imposed  upon  him  the  necessity  of  employ- 
ing a  physician,  and  of  being  subject  to  all  the  contingencies  attendant 
upon  the  present  imperfect  state  of  medical  science.  *  *  * 
(The  defendants  requested  the  court  below  to  charge  the  jury  that, 
"if  the  attending  physician  did  not  give  the  plaintiff*  the  ordinarily  ap- 
proved treatment,  and  his  case  is  worse  on  that  account  than  it  would 
otherwise  have  been,  then  to  that  degree  the  defendants  would  not  be 
liable  for  his  said  worse  condition.)  The  court  refused  so  to  instruct 
the  jury,  and  in  so  refusing  we  think  there  was  no  error.  If  the  con- 
dition of  Humphrey  was  worse  because  hi::  physician  did  not  give  the 


238  COMPENSATORY  DAMAGES.  (Part    5 

ordinarily  approved  treatment,  it  cannot  be  attributed  to  any  want  of 
care  and  prudence  on  Humphrey's  part  in  securing  medical  or  surgi- 
cal aid.     *     *     *  ** 


ELLIS  V.  HILTON. 

(Supreme  Court  of  Michigan,  1SS9.    78  Mich.  150,  43  N.  W.  1048, 
6  L.  R.  A.  454,  18  Am.  St.  Rep.  438.) 

Long,  ].^^  This  is  an  action  to  recover  damages  against  the  defend- 
ant for  negligently  placing  a  stake  in  a  public  street  in  Traverse  City, 
which  plaintiff's  horse  ran  against,  and  was  injured.  It  was  conceded 
on  the  trial  by  counsel  for  defendant  that  the  horse  of  plaintiff  was 
so  injured  that  it  was  entirely  worthless.  Plaintiff  claimed  damages, 
not  only  for  the  full  value  of  the  horse,  but  also  for  what  he  expended 
in  attempting  to  effect  a  cure,  and  on  the  trial  his  counsel  stated  to 
the  court  that  plaintiff  was  entitled  to  recover  a  reasonable  expense 
in  trying  to  cure  the  horse  before  it  was  decided  that  she  was  actually 
worthless.  The  court  ruled,  however,  that  the  damages  could  not  ex- 
ceed the  value  of  the  animal.  A  claim  is  made  by  the  declaration  for 
moneys  expended  in  trying  to  effect  a  cure  of  the  horse  after  the  in- 
jury. Upon  the  trial  the  plaintiff'  testified  that  he  put  the  horse,  aft- 
er the  injury,  into  the  hands  of  a  veterinary,  and  paid  him  $35  for 
cure  and  treatment.  On  his  cross-examination,  he  also  testified  that 
the  veterinary  said  "there  was  hopes  of  curing  her,  if  the  muscles 
were  not  too  badly  bruised.  He  didn't  say  he  could  cure  her.  He 
thought  there  was  a  chance  that  he  might." 

Dr.  De  Cow,  the  veterinary,  was  called,  and  testified,  as  to  the  in- 
jury, that  the  stake  entered  the  breast  of  the  horse,  on  the  left  side, 
about  six  inches;  that  the  muscles  were  bruised,  and  the. left  leg  per- 
fectly helpless.  He  got  the  wound  healed,  but  on  account  of  the  se- 
vere bruise  of  the  muscles  the  leg  became  paralyzed  and  useless.  On 
being  asked  whether  he  thought  she  could  be  helped  when  he  first 
saw  her,  he  stated  that  he  did  not  know  but  she  might ;  that  she  might 
be  helped,  and  kept  for  breeding  purposes,  and  be  of  some  value. 

6  5  See  Bailey  v.  City  of  Centerville,  108  Iowa,  20,  78  N.  W.  831  (1899), 
where  the  court  held  tliat,  if  a  slight  surgical  operation  will  give  relief,  there 
is  a  duty  resting  on  the  plaintiff  in  a  personal  injury  action  to  undergo  such 
operation. 

Plaintiff  need  not  become  himself  a  wrongdoer  in  avoiding  consequences. 
C,  R.  I.  &  P.  R.  R.  Co.  V.  ■Carey,  90  111.  514  (1878).  The  plaintiff  need  only 
act  as  a  reasonable  person  would  be  expected  to  act.  Salladay  v.  Dodgeville, 
85  Wis.  318,  55  N.  W.  696,  20  L.  R.  A.  .541  (1893).  One's  duty  to  avoid  conse- 
quences arises  only  upon  the  commission  of  the  wrong.  Driver  v.  W.  U.  R. 
R.  Co.,  32  Wis.  569,  14  Am.  Rep.  726  (1873);  Plummer  v.  P.  L.  A.,  67  Me. 
363  (1877). 

66  Part  of  the  opinion  is  omitted. 


Cll.  1)  AVOIDABLE  CONSEQUENCES.    UjjiJ ^ytLtJ^   ^^- 

It  is  evident  from  the  testimony  that  the  plaintiff  acted  in  good  faith  '  '  ,_\;-*_i 
in  attempting  the  cure,  and  under  the  belief  that  the  mare  could  be  tW^_^^T^_^  ^ 
helped,  and  be  of  some  value.     The  court  below,  however,  seems  to  ^ 

have  based  its  ruling  that  no  greater  damages  could  be  recovered  than  V>-^-**^  \  ^ 
the  value  of  the  animal,  and  that  these  moneys  expended  in  attempting  ,^^  \j.^0^ 
a  cure  could  not  be  recovered,  upon  the  ground  that  the  defendant  was 
not  consulted  in  relation  to  the  matter  of  the  attempted  cure.  What-' 
ever  damages  the  plaintiff  sustained  were  occasioned  by  the  negli- 
gent conduct  of  the  defendant,  and  recovery  in  such  cases  is  always 
permitted  for  such  amount  as  shall  compensate  for  the  actual  loss. 
If  the  horse  had  been  killed  outright  the  only  loss  would  have  been 
its  actual  value.  The  horse  was  seriously  injured;  but  the  plaintiff, 
acting  in  good  faith,  and  in  the  belief  that  she  might  be  helped  and 
made  of  some  value,  expended  this  $35  in  care  and  medical  treatment. 
He  is  the  loser  of  the  actual  value  of  the  horse,  and  what  he  in  good 
faith  thus  expended.  He  is  permitted  to  recover  the  value,  but  cut 
off  from  what  he  has  paid  out.    This  is  not  compensation. 

Counsel  for  defendant  contends  that  such  damages  cannot  exceed 
the  actual  value  of  the  property  lost,  because  the  loss  or  destruction 
is  total.  There  may  be  cases  holding  to  this  rule ;  but  it  seems  to  me 
the  rule  is  vvell  stated,  and  based  upon  good  reason,  in  Watson  v. 
Bridge,  14  Me.  201,  31  Am.  Dec.  49,  in  which  the  court  says:  "Plain- 
tiff is  entitled  to  a  fair  indemnity  for  his  loss.  He  has  lost  the  value 
of  his  horse,  and  also  what  he  has  expended  in  endeavoring  to  cure 
him.  The  jury  having  allowed  this  part  of  his  claim,  it  must  be  un- 
derstood that  it  was  an  expense  prudently  incurred,  in  the  reasonable 
expectation  that  it  would  prove  beneficial.  It  was  incurred,  not  to 
aggravate,  but  to  lessen  the  amount  for  which  the  defendants  might 
be  held  liable.  Had  it  proved  successful,  they  would  have  had  the 
benefit  of  it.  As  it  turned  out  otherwise,  it  is  but  just,  in  our  judg- 
ment, that  they  should  sustain  the  loss."  In  Murphy  v.  McGraw,  74 
Mich.  318,  41  N.  W.  917,  it  appeared  on  the  trial  that  the  horse  was 
worthless  at  the  time  of  purchase  by  reason  of  a  disease  called  "ecze- 
ma." The  court  charged  the  jury  that  if  the  plaintiff  was  led  by  de- 
fendant to  keep  on  trying  to  cure  the  horse  the  expense  thereof  w^ould 
be  chargeable  to  the  defendant,  as  would  also  be  the  case  if  there  were 
any  circumstances,  in  the  judgment  of  the  jury,  which  rendered  it  rea- 
sonable that  he  should  keep  on  trying  as  long  as  he  did  to  eft'ect  the 
cure.  The  plaintiff'  recovered  for  such  expense  and  on  the  hearing 
here  the  charge  of  the  trial  court  was  held  correct. 

It  is  a  question,  under  the  circumstances,  for  the  jury  to  determine 
whether  the  plaintiff  acted  in  good  faith,  and  upon  a  reasonable  belief 
that  the  horse  could  be  cured,  or  made  of  some  value,  if  properly  tak- 
en care  of;  and  the  trial  court  was  in  error  in  withdrawing  that  part 
of  the  case  from  them.  Such  damages,  of  course,  must  always  be  con- 
fined within  reasonable  bounds,  and  no  one  would  be  justified,  under 


•JVwMiV 


240  COMPENSATORY  DAMAGES.  (Part    5 

any  circumstances,  in  expending  more  than  the  animal  was  worth  in 
attempting  a  cure.     *     *     *  ^7 
Judgment  reversed,  and  new  trial  ordered. 

WARD'S  CENTRAL  &  PACIFIC  LAKE  CO.  v.  ELKINS. 

(Supreme  Court  of  Michigan,  187G.     34  Mich.  439,  22  Am.  Rep.  544.) 

CampbeIvL,  J.*  Elkins  recovered  damages  against  the  plaintiff  in 
error  for  failure  to  carry  certain  salt  from  Bay  City  to  Chicago  in  No- 
vember, 1874.  Elkins  was  a  salt  dealer  in  Chicago,  and  sued  upon  an 
alleged  contract  whereby  the  plaintiff  in  error  was  to  carry  three  car- 
goes of  salt,  of  about  seventeen  thousand  bushels  in  all,  only  one  ol 
which  was  taken.  The  cargoes  were  to  be  called  for  from  the  15th 
to  the  20th  of  November.  The  regular  business  of  plaintiff  in  error 
was  between  Buffalo  and  Duluth,  with  power,  as  was  claimed,  to  do 
business  elsewhere  on  the  lakes. 

Elkins  gave  evidence  tending  to  show  that  he  could  not  get  ves- 
sels to  carry  the  salt  after  plaintiff's  default.  He  had  it  taken  by  rail 
to  Chicago  in  lots  as  he  wanted  it,  from  January  to  some  time  in  April, 
1875,  and  was  allowed  to  recover  the  difference  between  the  price 
agreed  on  with  plaintiff  and  what  he  paid  for  the  transportation  by 
rail.    This  is  the  chief  error  complained  of. 

iWe  do  not  see  upon  what  rule  this  recovery  can  be  justified.  The 
damage  to  which  Elkins  was  entitled,  if  any,  would  be  such  as  would 
have  placed  him  in  the  position  he  would  have  occupied  had  the  salt 
been  taken  to  Chicago  by  vessel  as  agreed.  It  was  not  an  article  of 
specific  utility  for  preservation,  but  an  article  of  merchandise,  and  on- 
ly valuable  as  such.  The  only  advantage  he  could  have  gained  by  a 
timely  shipment  according  to  contract  would  have  been  the  excess  of 
the  value  of  salt  in  the  Chicago  market  at  the  date  when  it  should  have 
arrived,  beyond  what  it  was  worth  in  Bay  City  and  the  expenses  of 
loading,  shipment  and  delivery  at  his  warehouse  in  Chicago.  If  there 
was  no  such  excess  in  value  at  that  time,  then  he  was  not  damaged. 
If  there  was  such  an  excess,  then  he  was  entitled  to  that  and  nothing 
more. 

He  would  not  have  been  justified  in  procuring  shipment  by  rail,  if 
the  railroad  process  would  have  rendered  it  unprofitable.  There  are, 
no  doubt,  cases  where  property  is  of  such  a  nature,  or  where  the  ne- 
cessity of  having  it  at  a  certain  point  is  so  imperative,  that  the  circum- 
stances may  justify  employing  any  transportation  which  is  accessible, 
and  may  render  the  difference  in  cost  of  transportation  a  proper  meas- 
ure of  damages.    But  this  can  never  be  proper  in  regard  to  ordinary 

67  See,  also,  cases  under  heading  "Expenses  Incurred,"  post. 
*Part  of  the  opinion  is  omitted. 


Cll.  1)       (^J*«-*iS*«  "'^  CERTAINTY    OF    PUOOP.  241 

articles  of  consumption,  always  to  be  found  in  the  market,  and  only 
valuable  to  the  owner  for  their  merchantable  qualities.  A  person  has 
no  right  to  put  others  to  an  expense  of  such  a  nature  as  he  would  not 
as  a  reasonable  man  incur  on  his  own  account.  Le  Blanche  v.  Railway 
Co.,  1  C.  P.  Div.  2SG. 

When  such  a  necessity  exists,  it  is  maintained  only  as  a  necessity, 
and  allowed  because  of  its  urgency.  If  such  a  rule  is  ever  applicable, 
it  cannot  be  satisfied  by  allowing-  a  party,  instead  of  seeking  other 
means  of  carriage  immediately  at  hand,  to  await  his  leisure  and  specu- 
late on  future  chances  and  make  shipments  piecemeal,  as  was  done 
here. 

It  is  altogether  likely  that  after  the  close  of  navigation,  and  as  the 
winter  goes  on,  prices  may  rise  so  as  to  warrant  shipments  by  rail, 
when  this  would  not  have  been  profitable  earlier;  and  it  may  be  pos- 
sible, after  paying  railroad  rates,  to  make  as  much  profit  as  if  the  salt 
had  been  received  by  steam  on  the  lakes  and  put  in  market  in  the  faU 
at  fall  rates.  It  would  be  absurd  to  say  that  these  deliberate  wintei 
shipments  were  necessitated  or  justified  by  a  failure  to  get  shipping 
facilities  during  the  season,  or  near  the  close  of  navigation  in  Novem- 
ber. It  would  be  equally  unjust  to  allow  the  owner  of  the  salt  to  spec- 
ulate on  the  chances  of  a  market  without  risk  to  himself. 

The  rule  of  damages  should  have  been  as  previously  indicated,  and 
should  in  no  case  exceed  the  damages  actually  incurred.  A  party  who 
has  lost  nothing  by  a  breach  of  contract,  is  not  entitled  to  damages  of 
a  substantial  character.     *     *     * 


SECTION    2.— CERTAINTY   OF    PROOF. 


MASTERTON  v.  MAYOR,  ETC.,  OF  CITY  OF  BROOKLYN. 

(Supreme  Court  of  New  York,  1845.    7  Hill,  61,  42  Am.  Dec.  3S.) 

The  plaintififs  contracted  to  furnish  from  Kain  &  Morgan's  quar- 
ry, to  be  paid  for  pro  rata  as  the  work  progressed,  all  the  marble  nec- 
essary to  erect  a  city  hall  in  the  city  of  Brooklyn.  In  order  to  obtain 
this  marble,  a  contract  was  afterwards  entered  into  by  the  plaintififs 
with  Kain  &  Morgan.  The  plaintiffs  furnished  marble  under  the  con- 
tract to  the  amount  of  14,779  feet  out  of  a  total,  as  estimated,  of  SS,S19 
feet,  when  the  defendant  suspended  the  work.  About  3,308  further 
feet,  properly  prepared  for  delivery,  was  then  on  hand. 

NiCLSON,  C.  J.""    The  damages  for  the  marble  on  hand,  ready  to  be 

•••■^Tlie  opinions  of  Boardsloy  and  Bronson,  .J.J.,  and  part  of  the  opinion  of 
Nelson.  C.  J.,  are  omitted,  and  tlie  statement  of  facts  is  rewritten. 
Gilij.Dam. — lU 


242  COMPENSATORY   DAMAGES.  (Part    5 

delivered,  were  not  a  matter  in  dispute  on  the  argument.  The  true 
measure  of  allowance  in  respect  to  that  item  was  conceded  to  be  the 
difference  between  the  contract  price  and  the  market  value  of  the  ar- 
ticle at  the  place  of  delivery.  This  loss  the  plaintiffs  had  actually  sus- 
tained, regard  being  had  to  their  rights  as  acquired  under  contract. 

The  contest  arises  out  of  the  claim  for  damages  in  respect  to  the 
remainder  of  the  marble  which  the  plaintiffs  had  agreed  to  furnish, 
but  which  they  were  prevented  from  furnishing  by  the  suspension  of 
the  work  in  July,  1837.  This  portion  was  not  ready  to  be  delivered 
at  the  time  the  defendants  broke  up  the  contract,  but  the  plaintiffs 
were  then  willing  and  offered  to  perform  in  all  things  on  their  part, 
and  the  case  assumes  that  they  were  possessed  of  sufficient  means  and 
ability  to  have  done  so. 

The  plaintiffs  insist  that  the  gains  they  would  have  realized,  over 
and  above  all  expenses,  in  case  they  had  been  allowed  to  perform  the 
contract,  enter  into  and  properly  constitute  a  part  of  the  loss  and  dam- 
age occasioned  by  the  breach ;  and  they  were  accordingly  permitted 
in  the  course  of  the  trial  to  give  evidence  tending  to  show  what  amount 
of  gains  they  would  have  reaHzed  if  the  contract  had  been  carried  in- 
to execution. 

On  the  other  hand,  the  defendants  say  that  this  claim  exceeds  the 
measure  of  damages  allowed  by  the  common  law  for  the  breach  of  an 
executory  contract.  They  insist  that  it  is  simply  a  claim  for  the  prof- 
its anticipated  from  a  supposed  good  bargain,  and  that  these  are  too 
uncertain,  speculative,  and  remote  to  form  the  basis  of  a  recovery. 

It  is  not  to  be  denied  that  there  are  profits  or  gains  derivable  from 
a  contract  which  are  uniformly  rejected  as  too  contingent  and  specula- 
tive in  their  nature,  and  too  dependent  upon  the  fluctuation  of  mar- 
kets and  the  chances  of  business,  to  enter  into  a  safe  or  reasonable  es- 
timate of  damages.  Thus  any  supposed  successful  operation  the  party 
might  have  made,  if  he  had  not  been  prevented  from  realizing  the  pro- 
ceeds of  the  contract  at  the  time  stipulated,  is  a  consideration  not  to 
be  taken  into  the  estimate.  Besides  the  uncertain  and  contingent  issue 
of  such  an  operation  in  itself  considered,  it  has  no  legal  or  necessary 
connection  with  the  stipulations  between  the  parties,  and  cannot,  there- 
fore, be  presumed  to  have  entered  into  their  consideration  at  the  time 
of  contracting.  It  has  accordingly  been  held  that  the  loss  of  any  spec- 
ulation or  enterprise  in  which  a  party  may  have  embarked,  relying  on 
the  proceeds  to  be  derived  from  the  fulfillment  of  an  existing  contract, 
constitutes  no  part  of  the  damages  to  be  recovered  in  case  of  breach. 
So  a  good  bargain  made  by  a  vendor,  in  anticipation  of  the  price  of  the 
article  sold,  or  an  advantageous  contract  of  resale  made  by  a  vendee, 
confiding  in  the  vendor's  promise  to  deliver  the  article,  are  considera- 
tions always  excluded  as  too  remote  and  contingent  to  affect  the  ques- 
tion of  damages.     *     *     * 

When  the  books  and  cases  speak  of  the  profits  anticipated  from  a 
good  bargain  as  matters  too  remote  and  uncertain  to  be  taken  into  the 


Ch.  1)  CERTAINTY    OF    PKOOF.  243 

account  in  ascertaining  the  true  measure  of  damages,  they  usually 
have  reference  to  dependent  and  collateral  engagements  entered  into  on 
the  faith  and  in  expectation  of  the  performance  of  the  principal  con- 
tract. The  performance  or  non-performance  of  the  latter  may  and 
often  does  exert  a  material  influence  upon  the  collateral  enterprises 
of  the  party;  and  the  same  may  be  said  as  to  his  general  affairs  and 
business  transactions.  But  the  influence  is  altogether  too  remote  and 
subtle  to  be  reached  by  legal  proof  or  judicial  investigation.  And  be- 
sides, the  consequences,  when  injurious,  are  as  often,  perhaps,  at- 
tributable to  the  indiscretion  and  fault  of  the  party  himself  as  to  the 
conduct  of  the  delinquent  contractor.  His  condition,  in  respect  to  the 
measure  of  damages,  ought  not  to  be  worse  for  having  failed  in  his 
engagement  to  a  person  whose  affairs  were  embarrassed  than  if  it  had 
been  made  with  one  in  prosperous  or  affluent  circumstances.  Dom 
bk.  3,  tit.  5,  §  2,  art.  4. 

But  profits  or  advantages  which  are  the  direct  and  immediate  fruits 
of  the  contract  entered  into  between  the  parties  stand  upon  a  different 
footing.  These  are  part  and  parcel  of  the  contract  itself,  entering 
into  and  constituting  a  portion  of  its  very  elements,  something  stipu- 
lated for,  the  right  to  the  enjoyment  of  which  is  just  as  clear  and  plain 
as  to  the  fulfillment  of  any  other  stipulation.  They  are  presumed  to 
have  been  taken  into  consideration  and  deliberated  upon  before  the 
contract  was  made  and  formed ;  perhaps  the  only  inducement  to  the  ar- 
rangement. The  parties  may,  indeed,  have  entertained  different  opin- 
ions concerning  the  advantages  of  the  bargain,  each  supposing  and  be- 
lieving that  he  had  the  best  of  it;  but  this  is  mere  matter  of  judgment 
going  to  the  formation  of  the  contract,  for  which  each  has  shown  him- 
self willing  to  take  the  responsibility,  and  must,  therefore,  abide  the 
hazard. 

(^Such  being  the  relative  position  of  the  contracting  parties,  it  is  dif- 
ficult to  comprehend  why,  in  case  one  party  has  deprived  the  other  of 
the  gains  or  profits  of  the  contract  by  refusing  to  perform  it,  this  loss 
should  not  constitute  a  proper  item  in  estimating  the  damages.  To 
separate  it  from  the  general  loss  would  seem  to  be  doing  violence  to 
the  intention  and  understanding  of  the  parties,  and  severing  the  con- 
tract itself j     *     *     * 

It  has  been  argued  that  inasmuch  as  the  furnishing  of  the  marble 
would  have  run  through  a  period  of  five  years— of  which  about  one 
year  and  a  half  only  had  expired  at  the  time  of  the  suspension— the 
benefits  which  the  party  might  have  realized  from  the  execution  of 
the  contract  must  necessarily  be  speculative  and  conjectural;  the  court 
and  jury  having  no  certain  data  upon  which  to  make  the  estimate.  If 
it  were  necessary  to  make  the  estimate  upon  any  such  basis,  the  ar- 
gument would  be  decisive  of  the  present  claim.  But.  in  my  judgment, 
no  such  necessity  exists.  [  Where  the  contract,  as  in  this  case,  is  broken 
before  the  arrival  of  the  time  for  full  performance,  and  the  opposite 
party  elects  to  consider  it  in  that  light,  the  market  price  on  the  dav  of 


244  COMPENSATORY  DAMAGES.  (Part   6 

the  breach  is  to  govern  in  the  assessment  of  damagesj  In  other  words, 
the  damages  are  to  be  settled  and  ascertained  accoraing  to  the  exist- 
ing state  of  the  market  at  the  time  the  cause  of  action  arose,  and  not 
at  the  time  fixed  for  full  performance.  The  basis  upon  which  to  es- 
timate the  damages,  therefore,  is  just  as  fixed  and  easily  ascertained 
in  cases  like  the  present,  as  in  actions  predicated  upon  a  failure  to 
perform  at  the  day. 

It  will  be  seen  that  we  have  laid  altogether  out  of  view  the  subcon- 
tract of  Kain  &  Morgan,  and  all  others  that  may  have  been  entered 
into  by  the  plaintiffs  as  preparatory  and  subsidiary  to  the  fulfillment  of 
the  principal  one  with  the  defendants.  Indeed,  I  am  unable  to  com- 
prehend how  these  can  be  taken  into  the  account,  or  become  the  sub- 
ject-matter of  consideration  at  all,  in  settling  the  amount  of  damages 
to  be  recovered  for  a  breach  of  the  principal  contract.  The  defendants 
had  no  control  over  or  participation  in  the  making  of  the  subcontracts, 
and  are  certainly  not  to  be  compelled  to  assume  them  if  improvident- 
ly  entered  into.  On  the  other  hand,  if  they  were  made  so  as  to  secure 
great  advantages  to  the  plaintiffs,  surely  the  defendants  are  not  en- 
titled to  the  gains  which  might  be  realized  from  them.  In  any  aspect, 
therefore,  these  subcontracts  present  a  most  unfit  as  well  as  unsatis- 
factory basis  upon  which  to  estimate  the  real  damages  and  loss  oc- 
casioned by  the  default  of  the  defendants.  The  idea  of  assuming  that 
the  plaintiffs  were  necessarily  compelled  to  break  all  their  subcontracts 
as  a  consequence  of  the  breach  of  the  principal  one,  and  that  the  dam- 
ages to  which  they  may  be  thus  subjected  ought  to  enter  into  the  es- 
timate of  the  amount  recoverable  against  the  defendants,  is  too  hypo- 
thetical and  remote  to  lead  to  any  safe  or  equitable  result.  And  yet 
the  fact  that  these  subcontracts  must  ordinarily  be  entered  into  prepar- 
atory to  the  fulfillment  of  the  principal  one,  shows  the  injustice  of  re- 
stricting the  damages,  in  cases  like  the  present,  to  compensation  for 
the  work  actually  done,  and  the  item  of  materials  on  hand.  We  should 
thus  throw  the  whole  loss  and  damage  that  would  or  might  arise  out 
of  contracts  for  further  materials,  etc.,  entirely  upon  the  party  not 
in  fault. 

If  there  was  a  market  value  of  the  article  in  this  case,  the  question 
would  be  a  simple  one.  As  there  is  none,  however,  the  parties  will  be 
obliged  to  go  into  an  inquiry  as  to  the  actual  cost  of  furnishing  the 
article  at  the  place  of  delivery;  and  the  court  and  jury  should  see 
that  in  estimating  this  amount  it  be  made  upon  a  substantial  basis, 
and  not  be  left  to  rest  upon  the  loose  and  speculative  opinions  of  wit- 
nesses. The  constituent  elements  of  the  cost  sl'K)uld  be  ascertained 
from  sound  and  reliable  sources;  from  practical  men,  having  ex- 
perience in  the  particular  department  of  labor  to  which  the  contract 
relates.  It  is  a  very  easy  matter  to  figure  out  large  profits  upon  paper ; 
but  it  will  be  found  that  these,  in  a  great  majorit}^  of  the  cases,  be- 
come seriously  reduced  when  subjected  to  the  contingencies  and  haz- 
ards incident  to  actual  performance.     A  jury  should  scrutinize  with 


Ch.  1)    ^""^ ^f^--^  CERTAINTY    OP    PROOF.  ^*-> 

care  and  watchfulness  any  speculative  or  conjectural  account  of  the 
cost  of  furnislung  the  article  that  would  result  in  a  very  unequal  bar- 
gain between  the  parties,  by  which  the  gains  and  benefits,  or,  in  other 
words,  the  measure  of  damages  against  the  defendants,  are  unrea- 
sonably enhanced.  They  should  not  overlook  the  risks  and  contm- 
gencies  which  are  almost  inseparable  from  the  execution  of  contracts 
like  the  one  in  question,  and  which  increase  the  expense  independently 
of  the  outlays  in  labor  and  capital.     *     *     * 


GRIFFIN  v.  COLVER  et  al. 
(Court  of  Appeals  of  New  York,  1S5S.     16  N.  Y.  4S9.  G9  Am.  Dec.  718.) 

Action  to  recover  the  purchase  price  of  an  engine.  Defendants 
sought  to  recoup  damages  for  delay  in  delivery  of  the  engine. 

Selden/J.^'*  The  only  point  made  by  the  appellants  is  that  in  es- 
timating their  damages  on  account  of  the  plaintiff's  failure  to  furnish 
the  engine  by  the  time  specified  in  the  contract,  they  should  have  been 
allowed  what  the  proof  showed  they  might  have  earned  by  the  use  of 
such  engine,  together  with  their  other  machinery,  during  the  time  lost 
by  the  delay.  This  claim  was  objected  to,  and  rejected  upon  the  trial 
as  coming  within  the  rule  which  precludes  the  allowance  of  profits, 
by  way  of  damages,  for  the  breach  of  an  executory  contract. 

To  determine  whether  this  rule  was  correctly  applied  by  the  referee, 
it  is  necessary  to  recur  to  the  reason  upon  which  it  is  founded.  It  is 
not  a  primary  rule,  but  is  a  mere  deduction  from  that  more  general 
and  fundamental  rule  which  requires  that  the  damages  claimed  should 
in  all  cases  be  shown,  by  clear  and  satisfactory  evidence,  to  have  been 
actually  sustained.  It  is  a  well-established  rule  of  the  common  law 
that  the  damages  to  be  recovered  for  a  breach  of  contract  must  be 
shown  with  certainty,  and  not  left  to  speculation  or  conjecture;  and 
it  is  under  this  rule  that  profits  are  excluded  from  the  estimate  of  dam- 
ages in  such  cases,  and  not  because  there  is  anything  in  their  nature 
which  should  per  se  prevent  their  allowance.  Profits  which  would  cer- 
tainly have  been  realized  but  for  the  defendant's  default  are  recover- 
able ;  those  which  are  speculative  or  contingent  are  not. 

Hence,  in  an  action  for  the  breach  of  a  contract  to  transport  goods. 
the  difference  between  the  price,  at  the  point  where  the  goods  are  and 
that  to  which  they  were  to  be  transported,  is  taken  as  the  measure  of 
damages;  and  in  an  action  against  a  vendor  for  not  delivering  the 
chattels  sold,  the  vendee  is  allowed  the  market  price  upon  the  day  fix- 
ed for  the  delivery.  Although  this,  in  both  cases,  amounts  to  an  al- 
lowance of  profits,  yet,  as  those  profits  do  not  depend  upon  any  con- 
tingency, their  recovery  is  permitted.     It  is  regarded  as  certain  that 

80  Part  ot  the  opinion  is  omitted. 


246  COMPENSATORY  DAMAGES.  (Part    5 

the  goods  would  have  been  worth  the  estabhshed  market  price  at  the 
place  and  on  the  day  when  and  where  they  should  have  been  delivered. 

On  the  other  hand,  in  cases  of  illegal  capture,  or  of  the  insurance 
of  goods  lost  at  sea,  there  can  be  no  recovery  for  the  probable  loss 
of  profits  at  the  port  of  destination.  The  principal  reason  for  the 
difference  between  these  cases  and  that  of  the  failure  to  transport 
goods  upon  land  is,  that  in  the  latter  case  the  time  when  the  goods 
should  have  been  delivered,  and  consequently  that  when  the  market 
price  is  to  be  taken,  can  be  ascertained  with  reasonable  certainty ; 
while  in  the  former  the  fluctuation  of  the  markets  and  the  contingen- 
cies affecting  the  length  of  the  voyage  render  every  calculation  of 
profits  speculative  and  unsafe.     *     *     * 

Similar  language  is  used  in  the  cases  of  The  Amiable  Nancy,  3 
Wheat.  546,  4  L.  Ed.  456,  and  La  Amistad  de  Rues,  5  Wheat.  385,  5 
L.  Ed.  115.  Indeed,  it  is  clear  that  whenever  profits  are  rejected  as 
an  item  of  damages  it  is  because  they  are  subject  to  too  many  contin- 
gencies and  are  too  dependent  upon  the  fluctuations  of  markets  and 
the  chances  of  business  to  constitute  a  safe  criterion  for  an  estimate 
of  damages.  This  is  to  be  inferred  from  the  cases  in  our  own  courts. 
The  decision  in  the  case  of  Blanchard  v.  Ely,  21  Wend.  343,  34  Am. 
Dec.  350,  must  have  proceeded  upon  this  ground,  and  can,  as  I  appre- 
hend, be  supported  upon  no  other.  It  is  true  that  Judge  Cowen,  in 
giving  his  opinion,  quotes  from  Pothier  the  following  rule  of  the 
civil  law,  viz. :  f 'In  general,  the  parties  are  deemed  to  have  contem- 
plated only  the  damages  and  injury  which  the  creditor  might  suffer 
from  the  non-performance  of  the  obligations  in  respect  to  the  par- 
ticular thing  which  is  the  object  of  it,  and  not  such  as  may  have  been 
accidentally  occasioned  thereby  in  respect  to  his  own  (other)  affairs." 
But  this  rule  had  no  application  to  the  case  then  before  the  court.  It 
applies  only  to  cases  where,  by  reason  of  special  circumstances  having 
no  necessary  connection  with  the  contract  broken,  damages  are  sus- 
tained which  would  not  ordinarily  or  naturally  flow  from  such  breach ; 
as  where  a  party  is  prevented  by  the  breach  of  one  contract  from  avail- 
ing himself  of  some  other  collateral  and  independent  contract  enter- 
ed into  with  other  parties,  or  from  performing  some  act  in  relation 
to  his  own  business  not  necessarily  connected  with  the  agreement.  An 
instance  of  the  latter  kind  is  where  a  canon  of  the  church,  by  reason 
of  the  nondelivery  of  a  horse  pursuant  to  agreement,  was  prevented 
from  arriving  at  his  residence  in  time  to  collect  his  tithes. 

In  such  cases  the  damages  sustained  are  disallowed,  not  because  they 
are  uncertain,  nor  because  they  are  merely  consequential  or  remote, 
but  because  they  cannot  be  fairly  considered  as  having  been  within  the 
contemplation  of  the  parties  at  the  time  of  entering  into  the  contract 
Hence  the  objection  is  removed,  if  it  is  shown  that  the  contract  was 
entered  into  for  the  express  purpose  of  enabling  the  party  to  fulfill 
his  collateral  agreement,  or  perform  the  act  supposed.    Sedg.  Dam.  c.  3. 


(7h.  1)  CERTAINTY    OF    PROOF.  247 

In  Blanchard  v.  Ely  the  damages  claimed  consisted  in  the  loss  of  the 
use  of  the  very  article  which  the  plaintiff  had  agreed  to  construct; 
and  were,  therefore,  in  the  plainest  sense,  the  direct  and  proximate 
result  of  the  breach  alleged.  Moreover,  that  use  was  contemplated 
by  the  parties  in  entering  into  the  contract,  and  constitutec'  the  object 
for  which  the  steamboat  was  built.  It  is  clear,  therefore,  that  the  rule 
of  rothier  had  nothing  to  do  with  the  case.  Those  damages  must  then 
have  been  disallowed,  because  they  consisted  of  profits  depcndmg,  not, 
as  in  the  case  o'f  a  contract  to  transport  goods,  upon  a  mere  question 
of  market  value,  but  upon  the  fluctuations  of  travel  and  of  trade,  and 
many  other  contingencies.  The  citation,  by  Cowen,  J.,  of  the  maritime 
cases  to  which  I  have  referred,  tends  to  confirm  this  view.  This  case, 
therefore,  is  a  direct  authority  in  support  of  the  doctrine  that  whenev- 
er the  profits  claimed  depend  upon  contingencies  of  the  character  re- 
ferred to,  they  are  not  recoverable. 

The  case  of  Masterton  v.  Mayor,  etc.,  of  Brooklyn,  7  Hill,  61,  ■i^ 
Am  Dec  38,  decides  nothing  in  opposition  to  this  doctrine.  It  simply 
goes  to  support  the  other  branch  of  the  rule,  viz.,  that  profits  are  al- 
lowed where  they  do  not  depend  upon  the  chances  of  trade,  but  upon 
the  market  value  of  goods,  the  price  of  labor,  the  cost  of  transporta- 
tion, and  other  questions  of  the  like  nature,  which  can  be  rendered  rea- 
sonably certain  by  evidence.  ,  j  r  ,  ^ 
(prom  these  authorities  and  principles  it  is  clear  that  the  defendants 
were  not  entitled  to  measure  their  damages  by  estimating  what  they 
mio-ht  have  earned  by  the  use  of  the  engine  and  their  other  machinery 
had  the  contract  been  complied  with)  Nearly  every  element  entering 
into  such  a  computation  would  have  been  of  that  uncertain  character 
which  has  uniformly  prevented  a  recovery  for  speculative  profits. 

But  it  by  no  means  follows  that  no  allowance  could  be  made  to  the 
defendants  for  the  loss  of  the  use  of  their  machinery.  It  is  an  error 
to  suppose  that  "the  law  does  not  aim  at  complete  compensation  for 
the  injury  sustained,"  but  "seeks  rather  to  divide  than  satisfy  the 
loss  "  Sedg  Dam.  c.  3.  The  broad,  general  rule  in  such  cases  is,  that 
the  party  injured  is  entitled  to  recover  all  his  damages,  including  gams 
prevented  as  well  as  losses  sustained;  and  this  rule  is  subject  to  but 
two  conditions.  The  damages  must  be  such  as  may  fairly  be  supposed 
to  have  entered  into  the  contemplation  of  the  parties  when  they  made 
the  contract;  that  is,  must  be  such  as  might  naturally  be  expected  to 
follow  its  violation;  and  they  must  be  certain,  both  in  their  nature 
and  in  respect  to  the  cause  from  which  they  proceed. 

The  familiar  rules  on  the  subject  are  all  subordinate  to  these,  l^or 
instance:  (That  the  damages  must  flo>v  directly  and  naturally  from  the 
breach  of  contract,  is  a  mere  mode  of  expressing  the  first;  and  that 
they  must  be  not  the  remote  but  proximate  consequence  of  such 
breach,  and  must  not  be  speculative  or  contingent,  are  different  modifi- 
cations of  the  last.. 


24:8  COMPENSATORY  DAMAGES.  (Part    5 

These  two  conditions  are  entirely  separate  and  independent,  and  to 
blend  them  tends  to  confusion;  thus  the  damages  claimed  may  be  the 
ordinary  and  natural,  and  even  necessary  result  of  the  breach,  and  yet, 
if  in  their  nature  uncertain,  they  must  be  rejected;  as  in  the  case  of 
Blanchard  v.  Ely,  where  the  loss  of  the  trips  was  the  direct  and  neces- 
sary consequence  of  the  plaintiff's  failure  to  perform.  So  they  may  be 
definite  and  certain,  and  clearly  consequent  upon  the  breach  of  con- 
tract, and  yet  if  such  as  would  not  naturally  flow  from  such  breach, 
but,  for  some  special  circumstances,  collateral  to  the  contract  itself  or 
foreign  to  its  apparent  object,  they  cannot  be  recovered;  as  in  the 
case  of  the  loss  by  the  clergyman  of  his  tithes  by  reason  of  the  failure 
to  deliver  the  horse. 

Cases  not  unfrequently  occur  in  which  both  these  conditions  are  ful- 
filled ;  where  it  is  certain  that  some  loss  has  been  sustained  or  damage 
incurred,  and  that  such  loss  or  damage  is  the  direct,  immediate  and 
natural  consequence  of  the  breach  of  contract,  but  where  the  amount 
of  the  damages  may  be  estimated  in  a  variety  of  ways.  In  all  such 
cases  the  law,  in  strict  conformity  to  the  principles  already  advanced, 
uniformly  adopts  that  mode  of  estimating  the  damages  which  is  most 
definite  and  certain.     *     *     * 

Had  the  defendants  in  the  case  of  Blanchard  v.  Ely,  supra,  taken  the 
ground  that  they  were  entitled  to  recoup,  not  the  uncertain  and  con- 
tingent profits  of  the  trips  lost,  but  such  sum  as  they  could  have  real- 
ized by  chartering  the  boat  for  those  trips,  I  think  their  claim  must 
have  been  sustained.  The  loss  of  the  trips,  which  had  certainly  oc- 
curred, was  not  only  the  direct  but  the  immediate  and  necessary  result 
of  the  breach  of  the  plaintiffs'  contract. 

The  rent  of  a  mill  or  other  similar  property,  the  price  which  should 
be  paid  for  the  charter  of  a  steamboat,  or  the  use  of  machinery,  etc., 
are  not  only  susceptible  of  more  exact  and  definite  proof,  but,  in  a  ma- 
jority of  cases  would,  I  think,  be  found  to  be  a  more  accurate  measure 
of  the  damages  actually  sustained  in  the  class  of  cases  referred  to, 
considering  the  contingencies  and  hazards  attending  the  prosecution 
of  most  kinds  of  business,  than  any  estimate  of  anticipated  profits; 
just  as  the  ordinary  rate  of  interest  is,  upon  the  whole,  a  more  accurate 
measure  of  the  damages  sustained  in  consequence  of  the  non-payment 
of  a  debt  than  any  speculative  profit  which  the  creditor  might  expect 
to  realize  from  the  use  of  the  money.  It  is  no  answer  to  this  to  say 
that,  in  estimating  what  would  be  the  fair  rent  of  a  mill,  we  must 
take  into  consideration  all  the  risks  of  the  business  in  which  it  is  to  be 
used.  Rents  are  graduated  according  to  the  value  of  the  property  and 
to  an  average  of  profits  arrived  at  by  very  extended  observation ;  and 
so  accurate  are  the  results  of  experience  in  this  respect  that  rents  are 
rendered  nearly  if  not  quite  as  certain  as  the  market  value  of  commodi- 
ties at  a  particular  time  and  place. 

The  proper  rule  for  estimating  this  portion  of  the  damages  in  the 
present  case  was,  to  ascertain  what  would  have  been  a  fair  price  to 


Ch.  1)  CERTAINTY    OF    PROOF.  249 

pay  for  the  use  of  the  engine  and  machinery,  in  view  of  all  the  hazards 
and  chances  of  the  business ;  and  this  is  the  rule  which  I  understand 
the  referee  to  have  adopted.     *     *     *  '" 


ALLISON  V.  CHANDLER. 

(Supreme  Court  of  Michigan,  1S63.    11  Mich.  542.) 

The  plaintiff  alleged  a  wrongful  ouster  by  defendant,  his  landlord, 
from  a  storeroom  in  Detroit  which  plaintiff  had  occupied  as  a  jeweler 
for  over  six  years,  whereby  his  business  was  broken  up  and  injuries 
of  divers  kinds  sustained. 

Christiancy,  J.^^  *  *  *  While  in  many  cases  the  rule  of  dam-  C 
ages  is  plain  and  easy  of  application,  there  are  many  others  in  which, 
from  the  nature  of  the  subject-matter,  and  the  peculiar  circumstances, 
it  is  very  difficult— and  in  some  cases  impossible— to  lay  down  any 
definite,  fixed  rule  of  law  by  which  the  damages  actually  sustained 
can  be  estimated  with  a  reasonable  degree  of  accuracy,  or  even  a  prob- 
able approximation  to  justice;  and  the  injury  must  be  left  wholly,  or 
in  great  part,  unredressed,  or  the  question  must  be  left  to  the  good 
sense  of  the  jury  upon  all  the  facts  and  circumstances  of  the  case, 
aided  by  such  advice  and  instructions  from  the  court  as  the  peculiar 
facts  and  circumstances  of  the  case  may  seem  to  require.  But  the 
strong  inclination  of  the  courts  to  administer  legal  redress  upon  fixed 
and  certain  rules  has  sometimes  led  to  the  adoption  of  such  rules  in 
cases  to  which  they  could  not  be  consistently  or  justly  applied.  Hence 
there  is,  perhaps,  no  branch  of  the  law  upon  which  there  is  a  greater 
conflict  of  judicial  decisions,  and  none  in  which  so  many  merely  arbi- 
trary rules  have  been  adopted.     *     *     * 

The  principle  of  compensation  for  the  loss  or  injury  sustained  is,  we 
think,  that  which  Hes  at  the  basis  of  the  whole  question  of  damages 
in  most  actions  at  common  law,  whether  of  contract  or  tort.     *     *     * 

There  are  some  important  considerations  which  tend  to  limit  dam- 
ages in  an  action  upon  contract,  which  have  no  application  to  those 

TO  In  several  earlier  maritime  cases  it  was  thou£;ht  that  no  allowance  for 
nrofits  should  be  made.  The  Schooner  Lively,  1  Gall.  315,  Fed.  Cas.  No.  8,403 
(1812)-  The  Anna  Maria.  2  Wheat.  327,  4  L.  Ed.  252  (1817);  The  Amiable 
Nancy,  3  Wheat.  54(5.  4  L.  Ed.  450  (ISIS).  These  cases,  since  ^rastorton  v. 
Mayor  of  Brooklyn.  7  Hill  (N.  Y.)  61,  42  Am.  Dec.  38  (1844),  and  Griffin  y. 
Colver,  16  N.  Y.  489,  69  Am.  Dec.  718  (1S58),  have  not  represented  the  rule 
of  the  common  law.  . 

"The  loss  of  the  use  of  a  vessel  and  of  the  earnings  which  would  be  derived 
from  its  use  during  the  time  it  is  under  repair,  and  therefore  not  available 
for  trading  pun^oses,  is  certainly  damage  which  directly  and  naturally  flows 
from  a  collision."  Lord  Herschell,  in  The  Argentino,  14  App.  Cas.  519  (1889). 
holding  such  profits  recoverable.  Likewise,  where  a  definite  contract  for  fu- 
ture vovages  had  been  made.  Richardson  v.  Mellish.  2  Bing.  229  (1824).  But 
see  Priestly  v.  Maclean,  2  Post.  &  F.  288  (1860),  where  profits  were  deemed 
too  uncertain. 

Ti  Fart  of  the  opinion  is  omitle:!,  and  the  statement  of  facts  is  rewritten. 


250  COMPENSATORY  DAMAGES.  (Part    5 

purely  of  tort.  Contracts  are  made  only  by  the  mutual  consent  of  the 
respective  parties ;  and  each  party,  for  a  consideration,  thereby  con- 
sents that  the  other  shall  have  certain  rights  as  against  him,  which  he 
would  not  otherwise  possess.  In  entering  into  the  contract  the  parties 
are  supposed  to  understand  its  legal  effect,  and,  consequently,  the 
limitations  which  the  lav^r,  for  the  sake  of  certainty,  has  fixed  for  the 
recovery  of  damages  for  its  breach.  If  not  satisfied  with  the  risk 
which  these  rules  impose,  the  parties  may  decline  to  enter  into  the  con- 
tract, or  may  fix  their  own  rule  of  damages  when,  in  their  nature,  the 
amount  must  be  uncertain.  Hence,  when  suit  is  brought  upon  such 
contract,  and  it  is  found  that  the  entire  damages  actually  sustained  can 
not  be  recovered  without  a  violation  of  such  rules,  the  deficiency  is  a 
loss,  the  risk  of  which  the  party  voluntarily  assumed  on  entering  into 
the  contract,  for  the  chance  of  benefit  or  advantage  which  the  contract 
would  have  given  him  in  case  of  performance.  His  position  is  one  in 
which  he  has  voluntarily  contributed  to  place  himself,  and  in  which, 
but  for  his  own  consent,  he  could  not  have  been  placed  by  the  wrong- 
ful act  of  the  opposite  party  alone. 

Again,  in  the  majority  of  cases  upon  contract,  there  is  little  difficulty 
from  the  nature  of  the  subject,  in  finding  a  rule  by  which  substantial 
compensation  may  be  readily  estimated;  and  it  is  only  in  those  cases 
where  this  cannot  be  done,  and  where,  from  the  nature  of  the  stipula- 
tion, or  the  subject-matter,  the  actual  damages  resulting  from  a  breach, 
are  more  or  less  uncertain  in  their  nature,  or  difficult  to  be  shown  with 
accuracy  by  the  evidence,  under  any  definite  rule,  that  there  can  be  any 
great  failure  of  justice  by  adhering  to  such  rule  as  will  most  nearly 
approximate  the  desired  result.  And  it  is  precisely  in  these  classes  of 
cases  that  the  parties  have  it  in  their  power  to  protect  themselves 
against  any  loss  to  arise  from  such  uncertainty,  by  estimating  their 
own  damages  in  the  contract  itself,  and  providing  for  themselves  the 
rules  by  which  the  amount  shall  be  measured,  in  case  of  a  breach ;  and 
if  they  neglect  this,  they  may  be  presumed  to  have  assented  to  such 
damages  as  may  be  measured  by  the  rules  which  the  law,  for  the  sake 
of  certainty,  has  adopted. 

/Again,  in  analogy  to  the  rule  that  contracts  should  be  construed  as 
understood  and  assented  to  by  the  parties — if  not  as  a  part  of  that  rule 
— damages  which  are  the  natural,  and,  under  the  circumstances,  the 
direct  and  necessary  result  of  the  breach,  are  often  very  properly  re- 
jected, because  they  cannot  fairly  be  considered  as  having  been  within 
the  contemplation  of  the  respective  parties  at  the  time  of  entering  into 
the  contract/ 

None  of  these  several  considerations  have  any  bearing  in  an  action 
purely  of  tort.  The  injured  party  has  consented  to  enter  into  no  rela- 
tion with  the  wrongdoer  by  which  any  hazard  of  loss  should  be  incur- 
red ;  nor  has  he  received  any  consideration,  or  chance  of  benefit  or 
advantage,  for  the  assumption  of  such  hazard ;  nor  has  the  wrongdoer 
given  any  consideration,  nor  assumed  any  risk,  in  consequence  of  any 


Ch.  1)  CERTAINTY    OF    PROOF.  251 

act  or  consent  of  his.   The  injured  party  has  had  no  opportunity  to  pro- 
tect himself  by  contract  against  any  uncertainty  in  the  estimate  of 
damages;   no  act  of  his  has  contributed  to  the  injury;   he  has  yielded 
nothing  by  consent;  and,  least  of  all,  has  he  consented  that  the  wrong- 
doer might  take  or  injure  his  property  or  deprive  him  of  his  rights, 
for  such  sum  as,  by  the  strict  rules  which  the  law  has  established  for 
the  measurement  of  damages  in  actions  upon  contract,  he  may  be  able 
to  show,  with  certainty,  he  has  sustained  by  such  taking  or  injury. 
Especially  would  it  be  unjust  to  presume  such  consent,  and  to  hold 
him  to  the  recovery  of  such  damages  only  as  may  be  measured  with 
certainty  by  fixed  and  definite  rules,  when  the  case  is  one  which,  from 
its  very  nature,  affords  no  elements  of  certainty  by  which  the  loss  he 
has  actually  suffered  can  be  shown  with  accuracy  by  any  evidence  of 
which  the  case  is  susceptible.    Is  he  to  blame  because  the  case  happens 
10  be  one  of  this  character?    He  has  had  no  choice,  no  selection.    The 
nature  of  the  case  is  such  that  the  wrongdoer  has  chosen  to  make  it, 
and  upon  every  principle  of  justice  he  is  the  party  who  should  be  made 
to  sustain  all  the  risk  of  loss  which  may  arise  from  the  uncertainty 
pertaining  to  the  nature  of  the  case,  and  the  difficulty  of  accurately 
estimating  the  results  of  his  own  wrongful  act.    Upon  what  principle 
of  right  can  courts  of  justice  assume,  not  simply  to  divide  this  risk, 
which  would  be  thus  far  unjust,  but  to  relieve  the  wrongdoer  from  it 
entirely,  and  throw  the  whole  upon  the  innocent  and  injured  party? 
Must  not  such  a  course  of  decision  tend  to  encourage  trespasses,  and 
operate  as  an  inducement  for  parties  to  right  themselves  by  violence, 
in  cases  like  the  present? 

Since,  from  the  nature  of  the  case,  the  damages  cannot  be  estimated 
with  certainty,  and  there  is  a  risk  of  giving  by  one  course  of  trial  less, 
and  by  the  other  more  than  a  fair  compensation, — to  say  nothing  of 
justice, — does  not  sound  policy  require  that  the  risk  should  be  thrown 
upon  the  wrongdoer  instead  of  the  injured  party?  However  this  ques- 
tion may  be  answered,  we  cannot  resist  the  conclusion  that  it  is  better 
to  run  a  slight  risk  of  giving  somewhat  more  than  actual  compensa- 
tion, than  to  adopt  a  rule  which,  under  the  circumstances  of  the  case, 
will,  in  all  reasonable  probability,  preclude  the  injured  party  from  the 
recovery  of  a  large  proportion  of  the  damages  he  has  actually  sustain- 
ed from  the  injury,  though  the  amount  thus  excluded  cannot  be  es- 
timated with  accuracy  by  a  fixed  and  certain  rule.  Certainty  is  doubt- 
less very  desirable  in  estimating  damages  in  all  cases;  and  where, 
from  the  nature  and  circumstances  of  the  case,  a  rule  can  be  discovered 
by  which  adequate  compensation  can  be  accurately  measured,  the 
rule  should  be  applied  in  actions  of  tort  as  well  as  in  those  upon  con- 
tract.. Such  is  quite  generally  the  case  in  trespass  and  trover  for  the 
taking  or  conversion  of  personal  property,  if  the  property  (as  it  gen- 
erally"'is)  be  such  as  can  be  readily  obtained  in  the  market  and  has  a 
market  value.  But  shall  the  injured  party  in  an  action  of  tort,  which 
may  happen  to  furnish  no  element  of  certainty,  be  allowed  to  recover 


252  COMPENSATORY  DAMAGES.  (Part    5 

no  damages  (or  merely  nominal)  because  he  cannot  show  the  exact 
amount  with  certainty,  though  he  is  ready  to  show,  to  the  satisfaction 
of  the  jury,  that  he  has  suffered  large  damages  by  the  injury?  Cer- 
tainty, it  is  true,  would  thus  be  attained ;  but  it  would  be  the  certainty 
of  injustice.  And,  though  a  rule  of  certainty  may  be  found  which  will 
measure  a  portion,  and  only  a  portion,  of  the  damages,  and  exclude  a 
very  material  portion,  which  it  can  be  rendered  morally  certain  the  in- 
jured party  has  sustained,  though  its  exact  amount  cannot  be  measur- 
ed by  a  fixed  rule ;  here  to  apply  any  such  rule  to  the  whole  case,  is  to 
misapply  it;  and  so  far  as  it  excludes  all  damages  which  cannot  be 
measured  by  it  perpetrates  positive  injustice  under  the  pretense  of 
administering  justice. 

The  law  does  not  require  impossibilities,  and  cannot,  therefore,  re- 
quire a  higher  degree  of  certainty  than  the  nature  of  the  case  admits. 
And  we  can  see  no  good  reason  for  requiring  any  higher  degree  of  cer- 
tainty in  respect  to  the  amount  of  damages  than  in  respect  to  any  other 
branch  of  the  cause.  [Juries  are  allowed  to  act  upon  probable  and  infer- 
ential, as  well  as  direct  and  positive  proof.  And  when,  from  the  na- 
ture of  the  case,  the  amount  of  the  damages  cannot  be  estimated  with 
certainty,  or  only  a  part  of  them  can  be  so  estimated,  we  can  see  no 
objection  to  placing  before  the  jury  all  the  facts  and  circumstances  of 
the  case,  having  any  tendency  to  show  damages,  or  their  probable 
amount;  so  as  to  enable  them  to  make  the  most  intelligible  and  prob- 
able estimate  which  the  nature  of  the  case  will  permit.  This  should, 
of  course,  be  done  with  such  instructions  and  advice  from  the  court 
as  the  circumstances  of  the  case  may  require,  and  as  may  tend  to 
prevent  the  allowance  of  such  as  may  be  merely  possible,  or  too  re- 
mote or  fanciful  in  their  character  to  be  safely  considered  as  the  re- 
sult of  the  injuryj    *     *     * 

The  justice  of  the  principles  we  have  endeavored  to  explain  will, 
we  think,  be  sufficiently  manifest  in  their  application  to  the  present 
case.  The  evidence  strongly  tended  to  show  an  ouster  of  the  plaintiff 
for  the  balance  of  the  term  by  the  defendant's  act.  This  term  was  the 
property  of  the  plaintiff ;  and,  as  proprietor,  he  was  entitled  to  all  the 
benefits  he  could  derive  from  it.  He  could  not  by  law  be  compelled  to 
sell  it  for  such  sum  as  it  might  be  worth  to  others;  and,  when  tor- 
tiously  taken  from  him  against  his  will,  he  cannot  justly  be  limited  to 
such  sum — or  the  difference  between  the  rent  he  was  paying  and  the 
fair  rental  value  of  the  premises — if  the  premises  were  of  much  greater 
and  peculiar  value  to  him,  on  account  of  the  business  he  had  establish- 
ed in  the  store,  and  the  resort  of  customers  to  that  particular  place,  or 
the  good  will  of  the  place,  in  his  trade  or  business.  His  right  to  the 
full  enjoyment  of  the  use  of  the  premises,  in  any  manner  not  forbid- 
den by  the  lease,  was  as  clear  as  that  to  sell  or  dispose  of  it,  and  was 
as  much  his  property  as  the  term  itself,  and  entitled  to  the  same  pro- 
tection from  the  laws.  He  had  used  the  premises  as  a  jewelry  store, 
and  place  of  business  for  the  repairing  of  watches,  making  gold  pens. 


Ch.  1)  CERTAINTY    OF    PROOF.  253 

etc.  This  business  must  be  broken  up  by  the  ouster,  unless  the  plain- 
tiff could  obtain  another  fit  place  for  it;  and  if  the  only  place  he 
could  obtain  was  less  fitted  and  less  valuable  to  him  for  that  purpose, 
then  such  business  would  be  injured  to  the  extent  of  this  difference; 
and  this  would  be  the  natural,  direct,  and  immediate  consequence  of 
the  injury./  To  confine  the  plaintiff  to  the  difference  between  the  rent 
paid  and  the  fair  rental  value  of  the  premises  to  others  for  the  bal- 
ance of  the  term  would  be  but  a  mockery  of  justice.  To  test  this,  sup- 
pose the  plaintiff  is  actually  paying  that  full  rental  value,  and  has  es- 
tablished a  business  upon  the  premises,  the  clear  gains  or  profits  of 
which  have  been  an  average  of  one  thousand  dollars  per  year,  and  he 
is  ousted  from  the  premises,  and  this  business  entirely  broken  up  for 
the  balance  of  the  term,  can  he  be  allowed  to  recover  nothing  but  six 
cents  damages  for  his  loss?  To  ask  such  a  question  is  to  answer  it. 
jfThe  rule  which  would  confine  the  plaintiff  to  the  difference  between 
such  rental  value  and  the  stipulated  rent  can  rest  only  upon  the  as- 
sumption that  the  plaintiff  might  (as  in  case  of  personal  property)  go 
at  once  into  the  market  and  obtain  another  building  equally  well  fitted 
for  the  business,  and  that  for  the  same  rent;  and  to  justify  such  a 
rule  of  damages  this  assumption  must  be  taken  as  a  conclusive  pre- 
sumption of  law.  1  However  such  a  presumption  might  be  likely  to 
accord  with  the  fact  in  the  city  of  New  York,  in  most  western  cities 
and  towns  it  would  be  so  obviously  contrary  to  the  common  expe- 
rience of  the  facts  as  to  make  the  injustice  of  the  rule  gross  and  pal- 
pable. But  we  need  not  further  discuss  this  point,  as  a  denial  of  any 
such  presumption  was  clearly  involved  in  our  former  decision. 

The  plaintiff  in  this  case  did  hire  another  store,  "the  best  he  could 
obtain,  but  not  nearly  so  good  for  his  business" ;  "his  customers  did 
not  come  to  the  new  store,  and  there  was  not  so  much  of  a  thorough- 
fare by  it — not  one-quarter  of  the  travel ;  and  he  relied  much  upon 
chance  custom,  especially  in  the  watch-repairing  and  other  mechani- 
cal business."  This  injury  to  the  plaintiff's  business  was  as  clearly  a 
part  of  his  damages  as  the  loss  of  the  term  itself.  This  point,  also, 
was  decided  in  the  former  case,  and  we  there  further  held  that  the 
declaration  was  sufficient  to  admit  the  proof  of  this  species  of  loss. 

Now,  if  the  plaintiff'  is  to  be  allowed  to  recover  for  this  injury  to  his 
business,  it  would  seem  to  follow,  as  a  necessary  consequence,  that 
the  value  of  that  business  before  the  injury,  as  well  as  after,  not  only 
might,  but  should  be  shown,  as  an  indispensable  means  of  showing  the 
amount  of  loss  from  the  injury.  If  the  business  were  a  losing  one  to 
the  plaintiff  before,  his  loss  from  its  being  broken  up  or  diminished 
(if  anything)  would  certainly  be  less  than  if  it  were  a  profitable  one. 
It  is  not  the  amount  of  business  done,  but  the  gain  or  profit  arising 
from  it,  which  constitutes  its  value. 

But  it  is  insisted  that  loss  of  profits  constitutes  no  proper  ground  or 
element  of  damages.  If  there  be  any  such  rule  of  law  it  is  certainly 
not  a  universal,  and  can  hardly  be  called  a  general,  rule.     Decisions, 


254  COMPENSATORY   DAMAGES.  (Part    5 

it  is  true,  may  be  found  which  seem  to  take  it  for  granted  that  the 
rule  is  universal.  But  there  are  numerous  cases,  even  for  breach  of 
contract,  in  which  profits  have  been  properly  held  to  constitute  not 
only  an  element,  but  ?  measure  (and  sometimes  the  only  measure), 
of  damages,  as  in  Masterton  v.  Mayor,  7  Hill  (N.  Y.)  61,  42  Am.  Dec. 
38 ;  Railroad  Co.  v.  Howard,  13  How.  344,  14  L.  Ed.  157.  And  in 
actions  for  breach  of  contract  in  not  delivering  goods  (as  wheat  or 
other  articles)  having  a  marketable  value,  as  well  as  in  most  actions 
of  trespass  or  trover  for  the  taking  or  conversion  of  such  property, — 
wherever  the  difference  between  the  contract  price,  or  the  market  value 
at  the  time  of  taking  or  conversion,  and  the  higher  market  value  at 
any  subsequent  period,  is  held  to  constitute  the  damages, — in  all  such 
cases  this  difference  of  price  is  but  another  name  for  profits,  and  is 
yet  very  properly  held  to  be  a  measure  of  damages.  There  is  nothing, 
therefore,  in  the  nature  of  profits,  as  such,  which  prevents  their  allow- 
ance as  damages.  But  in  many,  and  perhaps  the  majority,  of  cases 
upon  contract  in  which  the  question  has  arisen,  they  have  been  held  to 
be  too  remote  or  dependent  upon  too  many  contingencies  to  be  cal- 
culated with  reasonable  certainty,  or  to  have  been  within  the  contem- 
plation of  the  parties  at  the  time  of  entering  into  the  contract. 

But  there  are  also  cases  for  breach  of  contract  where,  though  the 
profits  were  in  their  nature  somewhat  uncertain  and  contingent  (and 
in  most  of  them  quite  as  much  so  as  in  the  present  case),  they  were 
yet  held  to  constitute,  not  strictly  a  measure,  but  an  element  of  dam- 
ages proper  for  the  consideration  of  a  jury  to  enable  them  to  form  a 
judgment  or  probable  estimate  of  the  damages.  *  *  *  But  what- 
ever may  be  the  rule  in  actions  upon  contract,  we  think  a  more  liberal 
rule  in  regard. to  damages  for  profits  lost  should  prevail  in  actions 
purely  of  tort  (excepting  perhaps  the  action  of  trover).  Not  that  they 
should  be  allowed  in  all  cases  without  distinction,  for  there  are  some 
cases  where  they  might,  in  their  nature,  be  too  entirely  remote,  specu- 
lative, or  contingent  to  form  any  reliable  1  isis  for  a  probable  opinion. 
And  perhaps  the  decisions  which  have  excluded  the  anticipated  profits 
of  a  voyage  broken  up  by  illegal  capture  or  collision  may  be  properly 
justified  upon  this  ground.  Upon  this,  however,  we  express  no  opin- 
ion. (But  generally,  in  an  action  purely  of  tort,  where  the  amount  of 
profits  lost  by  the  injury  can  be  shown  with  reasonable  certainty,  we 
think  they  are  not  only  admissible  in  evidence,  but  that  they  constitute, 
thus  far,  a  safe  measure  of  damages^  as  when  they  are  but  another 
name  for  the  use  of  a  mill  (for  example),  as  in  White  v.  Moseley,  8 
Pick.  (Mass.)  356;  or  for  the  use  of  any  other  property  where  the 
value  or  profit  of  the  use  can  be  made  to  appear  with  reasonable  cer- 
tainty by  the  light  of  past  experience,  as  might  often  be  done  where 
such  profits  had  been  for  a  considerable  time  uniform  at  the  same  sea- 
son of  the  year,  and  there  are  no  circumstances  tending  to  show  a 
probable  diminution,  had  the  injury  not  occurred.  And  possibly  the 
same  view,  subject  to  the  like  qualifications,  might  have  been  taken 


^■^JA  V-UJ^  xu-^  «--^ 

Ch.  1)  CERTAINTY    OF    PROOF.  255 

of  the  profits  of  the  plaintiff's  business  had  it  been  confined  to  the  me- 
chanical trade  of  repairing  watches  and  making  gold  pens,  particular- 
ly if  done  purely  as  a  cash  business.  But  this  business  seems  to  have 
been  carried  on  with  that  of  the  sale  of  jewelry.  He  kept  a  jewelry 
store,  and  the  profits  of  so  much  of  his  business  as  may  be  regarded  as 
mercantile  business  are  dependent  upon  many  more  contingencies,  and 
therefore  more  uncertain,  especially  if  sales  are  made  upon  credit. 
Past  profits,  therefore,  could  not  safely  be  taken  as  the  exact  measure 
of  future  profits;  but  all  the  various  contingencies  by  which  such 
profits  would  probably  be  affected  should  be  taken  into  consideration 
by  the  jury,  and  allowed  such  weight  as  they,  in  the  exercise  of  good 
sense  and  sound  discretion,  should  think  them  entitled  to.  Past  profits 
in  such  cases,  where  the  business  has  been  continued  for  some  length 
of  time,  would  constitute  a  very  material  aid  to  the  jury  in  arriving  at 
a  fair  probable  estimate  of  the  future  profits,  had  the  business  still 
continued  without  interruption. 

Accordingly  such  past  profits  have  been  allowed  for  this  purpose, 
both  in  actions  ex  contractu  and  ex  delicto,  though  more  frequently  in 
the  latter,  where  from  the  nature  of  the  case  no  element  of  greater 
certainty  appeared,  and  the  actual  damages  must  be  more  or  less  a 
matter  of  opinion;  and  where,  as  in  the  present  case,  though  some- 
what inconclusive,  it  was  the  best  evidence  the  nature  of  the  case  ad- 
mitted.    *     *     * 

But  it  is  urged  by  the  counsel  for  the  defendant  that  damages  for 
the  loss  of  profits  ought  not  to  be  allowed,  because  they  could  not  have 
been  within  the  contemplation  of  the  defendant.  Whether,  as  matter 
of  fact,  this  is  likely  to  have  been  true,  we  do  not  deem  it  important 
to  inquire.  It  is  wholly  immaterial  whether  the  defendant,  in  com- 
mitting the  trespass,  actually  contemplated  this  or  any  other  species 
of  damage  to  the  plaintiflf.  This  is  a  consideration  which  is  confined 
entirely  to  cases  of  contracts,  where  the  question  is,  what  was  the  ex- 
tent of  obligation,  in  this  respect,  which  both  parties  understood  to  be 
created  by  the  contract?  But  wdiere  a  party  commits  a  trespass  he 
must  be  held  to  contemplate  all  the  damages  which  may  legitimately 
follow  from  his  illegal  act.     *     *     * 


BAGLEY  v.  SAIITH  et  al. 

(Court  of  Appeals  of  New  York,  1853.    10  N.  Y.  4S9,  Gl  Am.  Dec.  T'.O.) 

This  was  an  action  by  Bagley,  the  plaintifiF,  against  G.  &  £.  M. 
Smith,  to  recover  damages  for  a  premature  dissolution  of  a  partner- 
ship between  the  plaintiff  and  the  defendants,  before  the  expiration 
of  the  term  mentioned  in  their  articles.  *  *  *  A  witness  for  the 
plaintiff,  who  had  been  employed  to  keep  the  accounts  of  the  late  firm, 
was  asked,  what  were  the  profits  of  the  firm  for  the  last  six  months 
of  its  existence.     The  defendants'  counsel  objected  to  this  inquiry. 


256  COMPENSATORY  DAMAGES.  (Part    5 

on  the  grounds,  that  for  the  breach  of  copartnership  articles,  no  dam- 
ages, or,  at  most,  only  nominal  damages,  could  be  recovered ;  that 
by  the  constitution  of  the  partnership,  the  partners  have  a  power  of 
revocation,  whenever  they  lose  confidence  in  each  other;  that  pros- 
pective profits  form  no  ground  of  damages  at  all;  and  that  if  damages 
were  recoverable  at  all,  on  the  ground  of  loss  of  profits,  they  must 
be  limited  to  the  period  between  the  10th  August,  1848,  when  the  no- 
tice of  dissolution  was  given,  and  the  day  when  the  plaintiff  went  in- 
to business  again  on  his  own  account.  The  learned  judge,  however, 
overruled  the  objection,  and  admitted  the  testimony,  not  as  a  rule  of 
damages,  but  as  evidence  for  the  jury;  to  which  an  exception  was 
taken.     *     *     *  72 

Johnson,  J.''^  *  *  *  'pi^g  j^gj.^.  question  relates  to  the  admis- 
sion of  the  evidence  of  the  amount  of  past  profits,  to  be  considered 
by  the  jury  as  bearing  upon  future  profits.  It  will  be  observed  that 
the  objection  does  not  at  all  relate  to  the  mode  of  proof,  but  only  to 
the  competency  of  the  fact.  It  seems  to  me  quite  obvious  that,  outside 
of  a  court  of  justice,  no  man  would  undertake  to  form  an  opinion  as  to 
the  prospective  profits  of  a  business,  without,  in  the  first  place,  in- 
forming himself  as  to  its  past  profits,  if  that  fact  were  accessible.  As 
it  is  a  fact  in  its  nature  entirely  capable  of  accurate  ascertainment  and 
proof,  I  can  see  no  more  reason  why  it  should  be  excluded  from  the 
consideration  of  a  tribunal  called  upon  to  determine  conjccturally  the 
amount  of  prospective  profits,  than  proof  of  the  nature  of  the  business, 
or  any  other  circumstance  connected  with  its  transaction.  It  is  very 
true  that  there  is  a  great  difficulty  in  making  an  accurate  estimate  of 
future  profits,  even  with  the  aid  of  knowing  the  amount  of  the  past 
profits.  This  difficulty  is  inherent  in  the  nature  of  the  inquiry.  We 
shall  not  lessen  it  by  shutting  our  eyes  to  the  light  which  the  previous 
transactions  of  the  partnership  throw  upon  it.  Nor  are  we  the  more 
inclined  to  refuse  to  make  the  inquiry,  by  reason  of  its  difficulty,  when 
we  remember  that  it  is  the  misconduct  of  the  defendants  which  has 
rendered  it  necessary.     *     *     * 


BRIGHAM  et  al.  v.  CARLISLE. 

(Supreme  Court  of  Alabama,  18S4.     78  Ala.  243,  56  Am.  Rep.  28.) 

Clopton,  J.'^^  *  *  *  j>ut  there  are  damages,  which  are  in  the 
contemplation  of  the  parties  at  the  time  of  making  the  contract,  and 
are  the  natural  and  proximate  results  of  its  breach  which  are  not 
recoverable.  The  parties  must  necessarily  contemplate  the  loss  of 
profits  as  the  direct  and  necessary  consequence  of  the  breach  of  a  con- 

7  2  The  statement  of  the  case  is  abridged  from  that  of  the  official  report 
73  Part  of  the  opinion  is  omitted. 


Ch.  1)  CERTAINTY    OF    TROOP.  257 

tract,  and  yet  all  profits  are  not  within  the  scope  of  recoverable  dam- 
ages. There  are  numerous  cases,  however,  in  which  profits  constitute, 
not  only  an  element,  but  the  measure,  of  damage.  While  the  line  of 
demarcation  is  often  dim  and  shadowy,  the  distinctive  features  con- 
sist in  the  nature  and  character  of  the  profits.  When  they  form  an 
elemental  constituent  of  the  contract,  their  loss  the  natural  result  of 
its  breach,  and  the  amount  can  be  estimated  with  reasonable  certain- 
ty— such  certainty  as  satisfies  the  mind  of  a  prudent  and  impartial  per- 
son— they  are  allowed.  The  requisite  to  their  allowance  is  some  stand- 
ard, as  regular  market  values,  or  other  established  data,  by  reference 
to  which  the  amount  may  be  satisfactorily  ascertained.  Illustrations 
of  profits  recoverable  are  found  in  cases  of  sales  of  personal  property 
at  a  fixed  price,  evictions  of  tenants  by  landlords,  articles  of  partner- 
ship, and  many  commercial  contracts. 

On  the  other  hand,  "mere  speculative  profits,  such  as  might  be  con- 
jectured would  be  the  probable  result  of  an  adventure,  defeated  by 
the  breach  of  a  contract,  the  gains  from  which  are  entirely  conjectural, 
and  with  respect  to  which  no  means  exist  of  ascertaining  even  ap- 
proximately the  probable  results,  cannot,  under  any  circumstances,  be 
brought  within  the  range  of  recoverable  damages  "  1  Suth.  Dam.  141. 
(Profits  speculative,  conjectural  or  remote  are  not,  generally,  regard- 
ed as  an  element  in  estimating  the  damagesj  In  Pollock  v.  Gantt,  GO 
Ala.  373,  44  Am.  Rep.  519,  it  is  said :  "What  are  termed  'speculative 
damages' — that  is,  possible,  or  even  probable,  gains,  that  it  is  claim- 
ed would  have  been  realized  but  for  the  tortious  act  or  breach  of  con- 
tract charged  against  a  defendant — are  too  remote,  and  cannot  be  re- 
covered." The  same  rule  has  been  repeatedly  asserted  by  this  court. 
Culver  V.  Hill,  G8  Ala.  6G,  44  Am.  Rep.  134;  Higgins  v.  Mansfield, 
62  Ala.  267;  Burton  v.  Holley,  29  Ala.  318,  65  Am.  Dec.  401;  White 
V.  Miller,  71  N.  Y.  118,  27  Am.  Rep.  13 ;  French  v.  Ramge,  2  Neb. 
254;  2  Smith,  Lead.  Cas.  574;  Olmstead  v.  Burke,  25  111.  86.  The 
two  following  cases  may  serve  to  illustrate  the  difference  between 
profits  recoverable  and  not  recoverable,  In  Insurance  Co.  v.  Nexsen, 
84  Ind.  347,  43  Am.  Rep.  91,  an  insurance  agent,  who  had  been  dis- 
charged without  cause  before  the  expiration  of  his  contract,  was  al- 
lowed to  include  in  his  recovery  the  probable  value  of  renewals  on 
policies  previously  obtained  by  him,  upon  which  future  premiums 
would,  in  the  usual  course  of  business,  be  received  by  the  company, 
on  the  ground  that  the  amount  of  compensation  due  on  such  renewals 
can  be  ascertained  with  requisite  certainty  by  the  use  of  actuary's 
life  tables  and  comparisons,  and  that  the  basis  of  the  right  to  damages 
existed,  and  was  not  to  be  built  in  the  future.  In  Lewis  v.  Insurance 
Co.,  61  Mo.  534,  which  is  cited  with  approval  in  the  other  case,  the 
same  rule  as  to  the  probable  value  of  renewals  was  held ;  but  it  was 
also  held  that  an  estimate  of  the  probable  earnings  of  the  agent  there- 
after, derived  from  proof  of  the  amount  of  his  collections  and  commis- 
Gilb.Dam.— 17 


-fc-    ^    258   .        ^-^  .^^  COMPENSATORY  DAMAGES. 

yk**-^        sions  before  the  breach  of  the  contract,  in  the  absence  of  other  proof, 
vcviy-lu^j^^  too  speculative  to  be  admissible.     *     *     * 

/  ^i^  The  plaintiff,  by  the  contract,  undertook  the  business  of  traveling 

xA     ^^t^  salesman  for  the  defendants.    The  amount  of  his  commissions  depend- 
y(^t^        ed,  not  merely  on  the  number  and  amounts  of  sales  he  might  make, 

f  J  but  also  on  the  proportional  quantity  of  the  two  classes  of  goods  sold, 

*f^^*^'-^^Uiis  commissions  being  different  on  each.    The  number  and  amounts  of 
'X4r%AiyL  sales  depended  on  many  contingencies, — the  state  of  trade,  the  demand 

•y  for  such  goods,  their  suitableness  to  the  different  markets,  the  fluctua- 

,  ^  tions  of  business,  the  skill,  energy,  and  industry  with  which  he  prose- 
'0'^-*'*xTt'J,  cuted  the  business,  the  time  employed  in  effecting  different  sales,  and 
jLK/i^  upon  the  acceptance  of  his  sales  by  the  defendants.  There  are  no 
J  lyr  criteria,  no  established  data,  by  reference  to  which  the  profits  are 
^  capable  of  any  estimate.    They  are  purely  speculative  and  conjectural. 

fccK'Ur'^  Besides,  the  evidence  is  the  mere  opinion  and  conjecture  of  the  plain- 
L-Cw^   tiff,  without  giving  any  facts  on  which  it  was  based.     The  bare  state- 

t  '-r-"  ^^"^'  uncorroborated  by  any  facts,  and  without  a  basis,  that  "the  rea- 
'  q*f***]JlfsOTable  sales  would  have  been  fifteen  thousand  dollars,  and  that  the 
t^Pu*A  jjg^  profits  on  that  amount  of  sales  would  have  been  four  hundred  and 
■Mu^*-*'**^«^fty  dollars,"  is  too  conjectural  to  be  admissible.  Washburn  v.  Hub- 
l^-'A^  bard,  6  Lans.  (N.  Y.)  n.  *  *  * 
-  / 

HICHHORN,   MACK  &   CO.   et  al.  v.  BRADLEY. 
(Supreme  Court  of  Iowa,   19U2.     117  Iowa,  130,  90  N.  W.  592.) 

Action  for  cigars  sold  and  delivered.  Defendant  set  up,  by  way  of 
counterclaim,  damages  sustained  through  the  breach  by  plaintiff  of  an 
agreement  which  the  defendant  alleged  gave  him  the  exclusive  right 
to  sell  "Tom  Moore"  cigars  in  certain  territory  in  Iowa.  The  defend- 
ant by  efforts  and  expenditures  had  created  a  demand  for  the  cigars 
in  this  territory,  when  plaintiff's  refused  to  furnish  any  more  cigars. 
From  a  judgment  for  defendant  on  his  counterclaim,  the  plaintiff's  ap- 
pealed. 

McClain,  J.'^"  *  *  *  Here  we  are  not  concerned  with  the  ques- 
tion which  sometimes  arises,  whether  profits  are  within  the  contempla- 
tion of  the  parties,  according  to  the  rule  of  Hadley  v.  Baxendale,  9 
Exch.  341,  which  has  been  frequently  cited,  and  has  been  approved 
by  this  court  in  Manufacturing  Co.  v.  Day,  50  Iowa,  250,  and  other 
cases.  It  is  perfectly  clear  in  this  case  that  the  profits  to  be  derived 
from  the  sale  of  these  cigars  constituted  the  only  consideration  to  the 
defendant  for  entering  into  the  contract,  and  that  the  loss  of  such  prof- 
its was  in  the  contemplation  of  the  parties  at  the  time  the  contract  was , 
made  as  a  direct  consequence  which  would  result  from  its  breach.  And 
it  is  well  settled  that  when  the  loss  of  future  profits  is  thus  in  the  con- 

ff'  Part  of  the  opinion  is  omitted,  and  the  statement  of  facts  is  rewritten- 


Ch.  1)  CERTAINTY    OF    PROOF.  250 

templation  of  the  parties,  and  does  directly  result  from  the  breach  of  the 
contract,  the  amount  of  profits  thus  lost  may  be  recovered.     *     *     * 

The  distinction  between  an  erroneous  rule  of  law,  sometimes  as- 
sumed, that  prospective  profits  are  not  to  be  considered  in  measuring 
damages  for  breach  of  contract,  and  the  correct  proposition,  that  re- 
mote and  speculative  profits  cannot  be  shown,  for  the  reason  that  no 
sufficient  evidence  thereof  is  attainable,  is  thus  stated  in  U.  S.  v.  Be- 
han,  110  U.  S.  338,  314,  4  Sup.  Ct.  81,  83,  28  L.  Ed.  1G8 :  "The  prima 
facie  measure  of  damages  for  the  breach  of  a  contract  is  the  amount 
of  the  loss  which  the  injured  party  has  sustained  thereby.  If  the 
breach  consists  in  preventing  the  performance  of  the  contract,  with- 
out the  fault  of  the  other  party,  who  is  willing  to  perform  it,  the  loss 
of  the  latter  will  consist  of  two  distinct  items  or  grounds  of  damage, 
namely:  First,  what  he  has  already  expended  towards  performance, 
less  the  value  of  materials  on  hand;  secondly,  the  profits  that  he  would 
realize  by  performing  the  whole  contract.  The  second  item — profits 
— cannot  always  be  recovered.  They  may  be  too  remote  and  specula- 
tive in  their  character,  and  therefore  incapable  of  that  clear  and  direct 
proof  which  the  law  requires.  But  when,  in  the  language  of  Chief 
Justice  Nelson  in  the  case  of  Masterton  v.  Mayor,  etc.,  7  Hill  (N.  Y.) 
69,  42  Am.'  Dec.  38,  they  are  the  'direct  and  immediate  fruits  of  the 
contract,'  they  are  free  from  this  objection.  They  are  then  'part  and 
parcel  of  the  contract  itself,  entering  into  and  constituting  a  portion 
of  its  very  elements — something  stipulated  for,  the  right  to  the  enjoy- 
ment of  which  is  just  as  clear  and  plain  as  to  the  fulfillment  of  any 
other  stipulation  '  Still,  in  order  to  furnish  a  ground  of  recovery  in 
damages,  they  must  be  proved.  If  not  proved,  or  if  they  are  of 
such  a  remote  and  speculative  character  that  they  cannot  be  legally 
proved,  the  party  is  confined  to  his  loss  of  actual  outlay  and  ex- 
pense."    *     *     * 

So  where  an  agent  contracts  to  give  his  entire  time  to  his  employ- 
er for  a  compensation  to  be  determined  by  commissions  on  sales  of 
goods,  his  measure  of  damage  for  being  thrown  out  of  employment 
under  the  contract  is  the  value  of  his  time  lost,  and  not  the  profits 
which  he  would  have  made;  the  value  of  his  time  being  a  more  satis- 
factory measure  than  the  uncertain  and  indefinite  profits.  I\Iachine  Co. 
v.  Bryson,  44  Iowa,  159,  24  Am.  Rep.  735;  Sewing  j\Iach.  Co.  v. 
Sloan,  50  Iowa,  367;  Brigham  v.  Carlisle,  78  Ala.  243,  56  Am.  Rep. 
28.  These  last  three  cases  are  especially  relied  on  by  appellant,  but 
the  present  case  is  plainly  distinguishable  from  them.  In  those  cases 
there  was  a  measure  of  damage  which  could  be  resorted  to  for  the 
purpose  of  giving  the  injured  party  relief  for  breach  of  contract;  and 
the  court  in  each  case  thought  that  this  measure  was  more  satisfactory 
than  that  to  be  reached  by  considering  the  profits  which  might  have 
been  made  by  the  complaining  party,  had  he  been  allowed  to  perform 
his  contract.  If  the  question  considered  in  Machine  Co.  v.  Bryson, 
supra,  were  now  before  us  for  the  first  time,  we  might,  in  view  of  the 


260  COMPENSATORY  DAMAGES.  (Part    5 

later  authorities,  incline  to  the  view  expressed  in  the  dissenting-  opin- 
ion. As  supporting  that  view,  see,  in  addition  to  cases  already  cited, 
Wells  V.  Association,  39  C.  C.  A.  476,  99  Fed.  222,  53  L.  R.  A.  33. 
But  in  the  case  before  us  there  is  no  such  measure  of  damage  available 
as  was  found  in  the  cases  relied  on  by  counsel  for  appellant\^  Defend- 
ant did  not  contract  to  give  his  entire  services  to  plaintiff  in  the  sale 
of  cigars,  nor  were  his  entire  earnings  dependent  on  the  profits  to  be 
made  out  of  this  contract.  Here  it  is  impossible  to  estimate  his  dam- 
age by  the  value  of  the  time  lost.  Nor  is  it  possible  to  measure  his 
damage  by  the  labor  and  expense  involved  in  introducing  plaintiffs' 
cigars  to  the  trade.  To  some  extent,  defendant  has  already  been  com- 
pensated for  that  labor  and  expense  by  the  profits  derived  from  the 
sale  of  plaintiffs'  cigars  during  the  time  of  the  continuance  of  de- 
fendant's agency;  and  it  would  be  manifestly  impossible  to  determine 
the  proportion  of  the  labor  and  expense  for  which  he  had  received 
compensation,  and  the  proportion  for  which  he  was  dependent  by  way 
of  compensation  on  the  profits  which  should  have  been  derived  from 
future  sales  which  he  was  not  allowed  to  make.  It  is  well  established 
by  the  decided  preponderance  of  authority  that  where  future  profits 
are  in  the  contemplation  of  the  parties,  and  there  is  no  other  basis  on 
which  damages  for  breach  of  contract  can  be  estimated,  such  profits 
may  be  made  the  basis  for  the  recovery  of  damages.     *     *     * 

In  a  somewhat  similar  case  (Wakeman  v.  Manufacturing  Co.,  101 
N.  Y.  205,  4  N.  E.  264,  54  Am.  Rep.  676)  it  is  said  that  damages  by 
way  of  prospective  profits  "are  nearly  always  involved  in  some  uncer- 
tainty and  contingency.  Usually  they  are  to  be  worked  out  in  the 
future,  and  they  can  be  determined  only  approximately  upon  reason- 
able conjectures  and  probable  estimates.  They  may  be  so  uncertain, 
contingent,  and  imaginary  as  to  be  incapable  of  adequate  proof,  and 
then  they  cannot  be  recovered,  because  they  cannot  be  proved.  But 
when  it  is  certain  that  damages  have  been  caused  by  a  breach  of  con- 
tract, and  the  only  uncertainty  is  as  to  their  amount,  there  can  rarely 
be  good  reason  for  refusing,  on  account  of  such  uncertainty,  any 
damages  whatever  for  the  breach.  A  person  violating  his  contract 
should  not  be  permitted  entirely  to  escape  liability  because  the  amount 
of  the  damages  which  he  has  caused  is  uncertain.  It  is  not  true  that 
loss  of  profits  cannot  be  allowed  as  damages  for  a  breach  of  contract. 
Losses  sustained  and  gains  prevented  are  proper  elements  of  damage. 
Most  contracts  are  entered  into  with  the  view  to  future  profits,  and 
such  profits  are  in  the  contemplation  of  the  parties,  and,  so  far  as 
they  can  be  properly  proved,  they  may  form  the  measure  of  damage. 
As  they  are  prospective,  they  must,  to  some  extent,  be  uncertain  and 
problematical,  and  yet  on  that  account  a  person  complaining  of  breach 
of  contract  is  not  to  be  deprived  of  all  remedy.  It  is  usually  his  right 
to  prove  the  nature  of  his  contract,  the  circumstances  surrounding 
and  following  its  breach,  and  the  consequences  naturally  and  plainly 
traceable  to  it;   and  then  it  is  for  the  jury,  under  proper  instructions 


Ch.  1)  CERTAINTY    OF    PROOF.  201 

as  to  the  rules  of  damages,  to  determine  the  compensation  to  be 
awarded  for  the  breach.  When  a  contract  is  repudiated,  the  compen- 
sation of  the  party  complaining  of  its  repudiation  should  be  the  value 
of  the  contract."  To  the  same  effect,  see  Schumaker  v.  Heinemann,  90 
Wis.  251,  74  N.  W.  785.  Although  such  a  measure  of  damages  may  be 
unsatisfactory  and  uncertain,  yet,  if  it  is  the  most  satisfactory  and 
certain  measure  which  is  attainable,  justice  is  not  to  be  defeated  be- 
cause a  better  measure  is  not  at  hand.  "The  administration  of  justice 
frequently  proceeds  with  reasonable  certainty  of  accomplishing  what 
is  right,  or  as  nearly  right  as  human  efforts  may  attain  in  the  face  of 
similar  difficulties ;  and  it  does  so  by  making  the  experience  of  man- 
kind, or,  rather,  the  judgment  which  is  founded  upon  such  experience, 
the  guide."  Taylor  v.  Bradley,  39  N.  Y.  129,  144,  100  Am.  Dec.  415. 
It  seems  never  to  have  been  held  in  this  state  that,  where  there  is  no 
other  measure  of  damages  for  breach  of  contract,  a  contracting  party 
is  to  be  denied  any  damage  because  no  better  measure  than  the  rea- 
sonable prospective  profits  of  a  business  is  attainable.  We  think  that 
it  would  be  manifestly  unjust  to  deny  to  the  defendant  in  this  case  any 
recovery  whatever  for  breach  of  his  contract  because  the  contract  it- 
self contemplated  and  was  based  upon  prospective  profits.     *     *     *  ^a 


WESTERN  UNION  TELEGRAPH  CO.  v.  HALL. 

(Supreme  Court  of  United  States,  1888.    124  U.  S.  444,  8  Sup.  Ct 
577,  31  L.  Ed.  479.) 

The  plaintiff  at  Des  Moines,  Iowa,  delivered  to  the  defendant,  for 
transmission  to  Oil  City,  Pa.,  at  8  a.  m.  November  9,  1882,  a  message 
directing  his  broker  to  buy  10.000  barrels  of  petroleum,  if,  in  his  judg- 
ment, it  was  best  to  do  so.  The  message  was  not  delivered  until  6  p. 
m.  November  9th,  through  the  negligence  of  the  defendant.  The  mar- 
ket price  of  oil  at  the  time  the  message  should  have  been  received  was 
$1.17  per  barrel.  When  it  was  received  the  exchange  had  closed,  and 
on  the  following  morning  the  price  had  risen  to  $1.35,  at  which  figure 
the  broker  did  not  deem  it  advisable  to  buy.  A  judgment  was  render- 
ed for  plaintiff  for  $1,800  damages. 

Matthews,  J."  *  *  *  It  is  found  as  a  fact  that  if  the  dispatch 
upon  its  first  receipt  at  Oil  City  had  been  promptly  delivered  to  Charles 
T.  Hall,  to  whom  it  was  addressed,  he  would,  by  12  o'clock  on  that 

T6  See,  also.  Home  v.  Midluiid  Ry.  Co.,  ante,  p.  195;  Bernstein  v.  Meecli. 
post,  p.  423;  Booth  v.  Spuyten  Dnyvil  Rolling  Mill  Co.,  ante.  p.  203;  Trigg 
V.  Clay,  post,  p.  344;  Redmond  v.  ^Viu.  Mfg.  Co.,  iwst,  p.  51S;  Poposkey  v. 
Munkwitz,  post.  p.  593,  note;  Ilodgos  v.  Fries,  post,  p.  593,  note;  U.  S.  Trust 
Co.  of  N.  Y.  V.  O'Brien,  post,  p.  59."'..  note;  Guetzkow  Bros.  v.  Andrews,  ante, 
p.  207;  U.  S.  V.  Belian,  i)ost,  p.  422;  Allen  v.  Fox,  post,  i).  5Ui ;  Brownell  v. 
Chapman,  84  Iowa,  504,  51  N.  W.  249,  35  Am.  St.  Rep.  32G  (1892). 

7  7  Part  of  the  opinion  is  omitted,  and  the  statement  of  facts  is  rewritten. 


262  COMPENSATORY  DAMAGES.  (Part    5 

day,  have  purchased  10,000  barrels  of  oil  at  the  market  price  of  $1.17 
per  barrel,  on  the  plaintiff's  account.  He  was  unable  to  do  so  in  con- 
sequence of  the  delay  in  the  delivery  of  the  message.  *  *  *  jf  the 
order  had  been  executed  on  the  day  when  the  message  should  have 
been  delivered,  there  is  nothing  in  the  record  to  show  whether  the 
oil  purchased  would  have  been  sold  on  the  plaintiff's  account  on  the 
next  day  or  not,  or  that  it  was  to  be  bought  for  resale.  There  was 
no  order  to  sell  it,  and  whether  or  not  the  plaintiff  would  or  would  not 
have  sold  it  is  altogether  uncertain.  If  he  had  not  done  so,  but  had 
continued  to  hold  the  oil. bought,  there  is  also  nothing  in  the  record 
to  show  whether,  up  to  the  time  of  the  bringing  of  this  action,  he 
would  or  would  not  have  made  a  profit  or  suffered  a  loss,  for  it  is  not 
disclosed  in  the  record  whether  during  that  period  the  price  of  oil 
advanced  or  receded  from  the  price  at  the  date  of  the  intended  pur- 
chase. The  only  theor)',  then,  on  which  the  plaintiff  could  show  actual 
damage  or  loss  is  on  the  supposition  that,  if  he  had  bought  on  the  9th 
of  November,  he  might  and  would  have  sold  on  the  10th.  It  is  the 
difference  between  the  prices  on  those  two  days  which  was  in  fact  al- 
lowed as  the  measure  of  his  loss. 

It  is  clear  that  in  point  of  fact  the  plaintiff  has  not  suffered  any 
actual  loss.  No  transaction  was  in  fact  made,  and  there  being  neither 
a  purchase  nor  a  sale,  there  was  no  actual  difference  between  the 
sums  paid  and  the  sums  received  in  consequence  of  it  which  could  be 
set  down  in  a  profit  and  loss  account.  All  that  can  be  said  to  have 
been  lost  was  the  opportunity  of  buying  on  November  9th,  and  of  mak- 
ing a  profit  by  selling  on  the  10th,  the  sale  on  that  day  being  purely 
contingent,  without  anything  in  the  case  to  show  that  it  was  even 
probable  or  intended,  much  less  that  it  would  certainly  have  taken 
place.     *     *     * 

Of  course,  where  the  negligence  of  the  telegraph  company  con- 
sists not  in  delaying  the  transmission  of  the  message,  but  in  transmit- 
ting a  message  erroneously,  so  as  to  mislead  the  party  to  whom  it  is 
addressed,  and  on  the  faith  of  which  he  acts  in  the  purchase  or  sale 
of  property,  the  actual  loss  based  upon  changes  in  market  value  is 
clearly  within  the  rule  for  estimating  damages.  Of  this  class  ex- 
amples are  to  be  found  in  the  cases  of  Turner  v.  Telegraph  Co.,  41 
Iowa,  458,  20  Am.  Rep.  605,  and  Rittenhouse  v.  Telegraph,  44  N.  Y. 
263,  4  Am.  Rep.  673 ;  but  these  have  no  application  to  the  circum- 
stances of  the  present  case.  Here  the  plaintiff  did  not  purchase  the 
oil  ordered  after  the  date  when  the  message  should  have  been  deliver- 
ed, and  therefore  Avas  not  required  to  pay,  and  did  not  pay,  any  ad- 
vance upon  the  market  price  prevailing  at  the  date  of  the  order; 
neither  does  it  appear  that  it  was  the  purpose  or  intention  of  the  send- 
er of  the  message  to  purchase  the  oil  in  the  expectation  of  profits  to  be 
derived  from  an  immediate  resale.  If  the  order  had  been  promptly  de- 
livered on  the  day  it  was  sent,  and  had  been  executed  on  that  day,  it  is 
not  found  that  he  would  have  resold  the  next  day  at  the  advance,  nor 


Ch.  1)  CERTAINTY    OF    PROOF.  2G3 

that  he  couW  have  resold  at  a  profit  at  any  subsequent  day.  ^  The  only 
damage,  therefore,  for  which  he  is  entitled  to  recover  is  the  cost  of 
transmitting  the  delayed  message.  ]  *     *     * 


ADAMS  EXPRESS  CO.  v.  EGBERT. 

(Supreme  Court  of  Pennsylvania,  1860.    3G  Pa.  3G0,  78  Am.  Dec.  382.) 

Strong,  J.^^  The  express  company  are  common  carriers.  In  1858, 
they  received  from  the  plaintiff  below,  a  box  containing  plans  and 
specifications,  to  be  forwarded  to  a  committee  who  had  offered  a  pre- 
mium of  $500  to  the  successful  competitor,  for  the  best  plans  for  the 
Touro  Almshouse  at  New  Orleans.  The  plaintiff's  drawings  were 
^ent  for  competition.  In  consequence  of  the  default  of  the  company, 
they  were  not  delivered  until  after  the  appointed  day  for  receiving 
them,  nor  until  after  the  premium  had  been  awarded.  The  commit- 
tee was,  however,  then  convened,  and  the  plans  were  examined.  On 
the  trial,  it  was  proved  by  one  member,  the  only  one  whose  testimony 
was  taken,  that  in  his  opinion,  the  plans,  had  they  been  received  in 
time,  would  not  have  been  adopted,  because  they  did  not  suit  the  cli- 
mate, and  because  they  were  altogether  objectionable.  This  is  an  ac- 
tion against  the  company  to  recover  damages  for  the  breach  of  their 
contract  to  deliver  in  time,  and  the  question  is,  what  is  the  proper  rule 
for  the  measurement  of  damages. 

It  is  doubtless  true,  that  in  all  actions  for  the  breach  of  a  con- 
tract, the  loss  or  injury  for  which  damages  are  sought  to  be  recovered, 
must  be  a  proximate  consequence  of  the  breach.  A  remote  or  pos- 
sible loss  is  not  sufficient  ground  for  compensation.  There  is  no  meas- 
ure for  those  losses  which  have  no  direct  and  necessary  connection 
with  the  stipulations  of  the  contract,  or  which  are  dependent  upon 
contingencies,  other  than  the  performance  of  the  contract,  and  which 
are  therefore  incapable  of  being  estimated.  With  no  certainty  can  it 
be  said,  that  such  losses  are  attributable  to  the  wrongful  act  or  omis- 
sion of  him  who  has  violated  his  engagement.  But  on  the  other  hand, 
the  loss  of  profits  or  advantages,  which  must  have  resulted  from  a 
fulfillment  of  the  contract,  may  be  compensated  in  damages,  when 
they  are  the  direct  and  immediate  fruits  of  the  contract,  and  must 
therefore  have  been  stipulated  for,  and  have  been  in  the  contempla- 
tion of  the  parties  when  it  was  made. 

Applying  this  rule  to  the  present  case,  why  was  not  the  loss  of 
the  opportunity  to  compete  for  the  premium  (whatever  may  have  been 
its  value),  an  inmiediate  consequence  of  the  breach  of  the  contract? 
Why  was  not  that  loss  in  contemplation  of  the  parties?  The  company 
undertook  to  transport  the  box  to  the  committee  appointed  to  award 
the  premium.  The  purpose  of  the  contract  was  to  secure  to  the  plain- 
ts Part  of  the  opinion  is  omitted. 


264  COMPENSATORY  DAMAGES.  (Part    5 

tiff  the  privilege  of  competition.  Certainly  he  must  have  had  that  in 
contemplation,  and  if  the  company  were  informed  of  the  object  of  the 
transmission,  the  loss  of  this  privilege  was  in  view  of  both  parties 
at  the  time  they  entered  into  the  contract.  But  whether  known  or  not 
by  the  company,  the  loss  was  an  immediate  result  of  their  negligent 
breach.  We  do  not  now  stop  to  inquire,  whether  the  defendants  can 
be  held  liable  for  every  consequence,  even  though  immediate,  which 
cannot  reasonably  be  supposed  to  have  been  in  the  contemplation  of 
both  parties,  at  the  time  they  made  the  contract,  as  the  probable  re- 
sult of  the  breach  of  it.  Perhaps,  if  the  special  circumstances,  under 
which  the  contract  was  made,  and  which  occasioned  special  and  un- 
usual injury  to  attend  its  breach,  were  unknown  to  the  party  which 
broke  it,  they  could  not  be  held  to  make  compensation  for  more  than 
the  amount  of  injury  which  generally  results  from  the  breach  of  such 
contracts  in  cases  unattended  by  any  special  circumstances.  We  are 
inquiring  now,  however,  only  whether  the  loss  of  the  opportunity  by 
the  plaintiff  to  exhibit  his  plans  and  specifications  for  competition, 
was,  or  was  not,  too  remote  a  consequence  of  the  breach  of  contract 
to  be  taken  into  consideration  by  the  jury.  We  cannot  perceive  why 
it  was  not  the  first  consequence,  proximate,  immediate.  Some  doubt 
may  be  suggested,  arising  out  of  the  case  of  Watson  v.  Ambergate, 
Nottingham  &  Boston  Railway  Company,  15  Jurist,  448,  a  case  in  the 
Queen's  Bench,  England,  the  facts  of  which  closely  resemble  those 
of  the  present  case.  There  a  prize  had  been  offered  for  the  best  plan 
and  models  of  a  machine  for  loading  colliers  from  barges,  and  plans 
and  models  for  the  competition  were  to  be  sent  by  a  certain  day. 
The  plaintiff  sent  a  plan  and  model  accordingly  by  a  railway,  but 
through  negligence,  it  did  not  arrive  at  its  destination  until  after  the 
appointed  day.  The  court  appeared  to  be  of  opinion,  though  the  point 
was  not  directly  raised,  that  the  proper  measure  of  damages  was  the 
value  of  labour  and  materials  expended  in  making  the  plan  and  model, 
and  not  the  chance  of  obtaining  the  prize,  the  latter  being  too  remote  a 
ground  for  damages.  Patteson,  J.,  said,  that  the  right  principle  upon 
which  damages  were  recoverable,  was  that  the  goods  were  made  for 
a  special  purpose,  which  had  been  defeated  by  the  negligence  of  the 
defendants,  and  thus  they  had  become  useless. 

It  is  difficult  to  see  how  the  loss  of  the  time  and  labour  expended,  is 
a  less  remote  consequence  of  the  breach  of  the  contract,  than  is  the  loss 
of  the  opportunity  to  compete.  Nor  is  it  apparent,  how  the  value  of 
the  labour  and  materials  expended  upon  the  plan  and  model  in  that 
case,  or  the  value  of  the  time  and  labour  devoted  to  the  plans  and 
specifications  in  this,  can  be  regarded  as  any  measure  of  the  damages 
sustained  in  consequence  of  the  non-delivery  in  time  of  the  articles 
sent,  unless  the  opportunity  to  compete  for  the  prize  be  also  taken  in- 
to the  estimation.  If  the  chance  for  the  prize  is  too  remote,  if  it  has 
no  appreciable  value,  and  cannot  be  considered  by  the  jury,  then  what 


Ch.  1)  CERTAINTY    OF    PROOF.  265 

has  been  lost  by  the  breach  of  the  contract  to  deliver  in  time?  Not 
the  plans  and  specifications,  for  they  are  still  in  existence.  The  plain- 
tiff has  them.  The  time  and  labour  would  have  been  lost,  without  any 
breach  of  the  contract,  if  the  plaintiflf's  competition  for  the  prize  had 
proved  unsuccessful.  Their  loss  was  not,  therefore,  necessarily  a  con- 
sequence of  the  breach  of  the  contract.  And  if  the  time  and  labour 
were  expended,  solely  to  secure  a  chance  which  was  valueless,  how 
can  they  have  any  value?  They  are  certainly  as  remote  and  as  con- 
tingent as  is  the  chance  itself.  The  fact  appears  to  be,  that  the  opportu- 
nity to  compete,  is  what  gives  the  time  and  labour  expended  any  value, 
and  if  there  can  be  any  recovery  at  all,  beyond  nominal  damages,  as 
was  held  by  the  Queen's  Bench,  it  must  be  because  the  loss  of  the 
chance  for  the  prize,  as  it  was  then  called,  or  as  I  would  term  it,  the 
loss  of  the  opportunity  to  compete  for  the  prize,  is  not  too  remote  to 
be  considered,  and  because  its  worth  is  capable  of  being  measured. 

But  how  is  this  loss  to  be  estimated?  Suppose  the  engagement  of 
the  company  had  been  directly  to  afford  to  the  plaintiff  an  opportunity 
to  compete  for  the  premium  offered.  Could  he,  for  the  breach  of  such 
an  engagement,  have  recovered  more  than  nominal  damages,  without 
any  proof  that  any  actual  injury  had  resulted  from  the  breach?  We 
think  not.  (To  entitle  a  plaintiff  in  an  action  founded  on  a  contract, 
to  recover  more  than  nominal  damages  for  its  breach,  there  must 
always  be  evidence  that  an  actual,  substantial  loss  or  injury  has  been 
sustained,  unless  the  contract  itself  furnishes  a  guide  to  the  measure- 
ment of  the  damages ;  and  even  when  there  is  some  such  proof,  but 
the  amount  is  uncertain,  courts  have  sometimes  directed  the  jury  to 
allow  the  smallest  sum  which  would  satisfy  the  proof.\  Lawton  v. 
Sweeny,  8  Jurist,  964;  Clunness  v.  Pezzey,  1  Campb.  8.  A  plaintiff 
claims  compensation.  The  amount  of  that  compensation  is  a  part  of 
his  case.  Whether  in  the  present  case  this  plaintiff  sustained  any 
actual  injury,  depended  upon  the  degree  of  probability  there  was,  that 
he  would  have  been  a  successful  competitor  if  the  contract  had  not 
been  broken.  If  his  plans  were  entirely  defective,  if  they  were  suited 
better  for  a  bridge  than  for  an  almshouse,  it  cannot  be  claimed  that  he 
was  damaged.  He  introduced,  however,  no  evidence  to  show  that  there 
was  the  least  probability  that  the  premium  w^ould  have  been  awarded 
to  him,  had  his  plans  been  submitted  to  the  committee  in  time.  On 
the  contrary,  the  defendants  proved  that  doubtless  he  must  have  fail- 
ed. So  far,  then,  from  there  being  proof  of  actual  damage,  it  was  dis- 
proved. The  court  below,  however,  instructed  the  jury  that  there 
might  be  a  recovery  for  more  than  nominal  damages.  They  reversed 
the  rule  generally  recognized,  that  the  plaintiff  must  show  a  substan- 
tial, real  injury,  and  cast  upon  the  defendants  the  burden  of  proving 
that  there  was  none.  In  this  we  think  there  was  error.  The  second 
point  of  the  defendants  should  have  been  affirmed  unqualifiedly.  Inde- 
pendent of  the  defendants'  evidence,  the  plaintiff  was  not  entitled  to 


.  _yt!^3-->lB«W  X^.*^ 'V^  t'^A-^"-^- 


266  COMPENSATORY   DAMAGES.  (Part    5 

recover  more  than  nominal  damages,  because  he  had  not  proved  any 
actual  damages,  and  the  chance  for  the  premium  was  contingent. 
Much  more  was  this  so  upon  the  whole  evidence  in  the  cause.    *    *    * 

SHERMAN  CENTER  TOWN  CO.  v.  LEONARD. 

(Supreme  Court  of  Kansas,  1891,     46  Kan.  354,  26  Pac.  717, 
26  Am.  St.  Rep.  101.) 

The  defendant  company,  desiring  to  increase  the  influence  and  pop- 
ulation of  Sherman  Center  so  as  to  make  it  the  county  seat,  agreed 
with  plaintiff  to  remove  plaintiff's  hotel  from  Itasca  to  Sherman  Cen- 
ter and  to  convey  certain  lots  to  him  in  return  for  his  removal  to  that 
place.  The  plaintiff  complained  that  the  defendant  failed  to  remove  the 
hotel,  that  Sherman  Center  had  become  a  flourishing  place,  where  the 
keeping  of  a  hotel  would  have  been  profitable,  and  that  he  was  without 
business,  as  Itasca  had  become  depopulated. 

Johnston,  J.'^®  *  *  *  ^^^^  prospective  profits  that  he  lost  by 
the  breach  of  the  contract  are  too  remote,  uncertain,  and  speculative 
to  be  recoverable.  Who  can  tell  what  the  future  gains  of  the  hotel 
business  would  have  been  in  Sherman  Center,  if  he  had  moved  there? 
His  past  profits  in  Itasca  were  not  shown,  and  there  is  no  testimony  of 
the  gains  of  others  established  in  the  same  business  at  Sherman  Center. 
How,  then,  does  Leonard  know  that  the  profits  would  have  been  $150 
per  month?  The  gains  to  be  derived  from  the  business  depended  up- 
on many  contingencies  other  than  the  mere  removal  of  his  hotel  to 
that  place.  The  growth  of  the  town;  the  location  of  the  county-seat 
there  or  at  another  town  near  by;  the  immigration  and  travel;  the 
competition  in  the  hotel  business ;  the  price  of  provisions  and  the 
cost  of  help;  the  general  reputation  of  the  house;  and  the  popularity 
of  the  landlord  with  the  traveling  public  and  the  people  of  that  com- 
munity,— are  suggested  as  some  of  the  considerations  that  would  af- 
fect the  anticipated  benefits.  'Where  the  breach  of  a  contract  results 
in  the  loss  of  definite  profits,  which  are  ascertainable,  and  were  within 
the  contemplation  of  the  contracting  parties,  they  may  generally  be  re- 
covered; but  the  prospective  profits  do  not  furnish  the  correct  meas- 
ure of  damages  in  the  present  case,".  Aside  from  the  remote,  conject- 
ural, and  speculative  character  of  the  anticipated  benefits,  it  cannot  be 
said  that  the  loss  of  them  is  the  direct  and  unavoidable  consequence 
of  the  breach.  The  plaintiff"  could  not  sit  idle  an  indefinite  length  of 
time  and  safely  count  on  the  recovery  of  $150  per  month  as  damages. 
If  there  was  a  breach  of  the  contract,  it  was  his  duty,  upon  learning 
of  it,  to  at  once  remove  the  building,  or  employ  others  to  do  so,  and 
charge  the  cost  of  the  removal  to  the  town  company.  The  law  re- 
quires that  the  injured  party  shall  do  whatever  he  reasonably  can  and 

7  8  Part  of  the  opinion  is  omitted,  and  the  statement  of  facts  is  rewritten. 


Ch.  1)  CERTAINTY    OF    PROOF.  207 

improve  all  reasonable  opportunities  to  lessen  the  injury.  'From  the 
.testimony  it  appears  that  Leonard  could  have  procured  others  to  move 
the  hotel;  and  in  such  a  case  the  ordinary  measure  of  damages  is 
the  cost  of  removal,  and  the  reasonable  expenses  of  avoiding  the  con- 
sequence of  the  defendant's  wrong,  "Railway  Co.  v.  Mihlman,  17  Kan. 
23i      *     *     *  so 


McPEEK   v.    WESTERN   UNION    TELEGRAPH    CO. 

(Supreme  Court  of   Iowa.    1800.     107    Iowa,   3r>r,.   78   N.   W.    G3, 
43  Ij.  R.  a.  L'14,  70  Am.  St.  Rep.  203.) 

Ladd,  J.'^  September  20,  1896,  after  mortally  wounding  John 
Finley,  the  marshal  of  Morning  Sun,  Orman  IMcPherson  fled.  A 
few  days  later  the  plaintifif  saw  his  wife,  who  promised  to  assist  him 
in  procuring  the  arrest  of  her  husband.  McPeek  obtained  McPher- 
son's  pension  papers  from  Keithsburg,  111.,  for  her;  and  she  advised 
him  (being  in  secret  correspondence  under  an  assumed  name)  of  hav- 
ing these,  and  he  came  to  her  room  at  the  hotel  at  Morning  Sun,  where 
she  was  employed  as  cook,  October  33,  1896,  at  about  10  o'clock  p.  m. 
(having  so  arranged  earlier  in  the  evening),  and  there  remained  until 
between  3  and  4  o'clock  the  following  morning.  Before  coming  in, 
he  gave  up  his  revolvers,  and  she  placed  them  in  a  bureau,  where  they 
remained  during  his  stay.  She  had  agreed  to  write  to  McPeek  when 
she  expected  her  husband,  but,  if  he  came  unexpectedly,  then  to  tele- 
graph him.  At  about  7  o'clock  p.  m.  of  the  22d,  she  delivered  to  the  de- 
fendant's agent  at  Morning  Sun  this  telegram :  "E.  E.  McPeek,  Win- 
field:  Come  on  first  train.  Answer.  M.  E.  M. — "  telling  him  she 
wanted  it  "sent  right  away  and  delivered  and  wanted  an  answer." 
[Ridge way,  the  agent  at  Winfield,  failed  to  deliver  the  message  until 
the  following  morning  after  the  only  train  for  Morning  Sun  for  the 
day  had  left.  McPeek  had  told  Ridge  way  that  he  was  making  an  ef- 
fort to  capture  McPherson  and  might  get  a  telegram  from  Morning 
Sun  about  the  matter.]  On  the  31st  day  of  October,  1896,  the  gov- 
ernor of  Iowa,  by  proclamation,  offered  a  reward  of  $300  for  the  ar- 
rest of  McPherson,  and  his  delivery  to  the  proper  authorities.  The 
plaintiff's  action  is  based  on  the  allegation  that  he  lost  this  reward 
through  the  negligence  of  the  defendant  in  not  delivering  the  mes- 
sage on  the  evening  of  October  32d.     *     *     * 

It  is  insisted  that  the  damages  were  remote,  and  not  such  as  either 
party  might  have  contemplated  from  the  wording  of  the  message. 
But  extrinsic  evidence  was  admissible  to  show  that  defendant  had  no- 
tice of  the  importance  of  the  message.  Cable  Co.  v.  Lathrop,  131  111. 
575,  33  N.  E.  583,  7  L.  R.  A.  474.  19  Am.  St.  Rep.  55;  Telegraph 
Co.  v.  Edsall,  74  Tex.  329,  12  S.  W.  41,  15  Am.  St.  Rep.  835.    The 

80  Accord:    Watson  v.  Amlicr;;ate  Ry.,  15  Jur.  448  (1851). 

81  Tart  of  the  opiuiou  is  omilted. 


268  COMPENSATORY   DAMAGES.  (Part    5 

appellant  argues  the  case  on  the  theory  that  the  action  of  plaintiff  is 
for  the  breach  of  contract.  He  made  no  contract  with  the  defendant. 
This  is  conceded  by  appellant  in  its  opening  argument,  and  denied  in 
its  reply.  The  first  impression  was  undoubtedly  the  correct  one.  The 
contract  was  with  the  sender  of  the  message,  and  whether  recovery 
might  be  had  for  breach  thereof,  because  made  for  plaintiff's  benefit, 
we  need  not  determine.  This  action  is  based  on  the  negligence  of  the 
defendant  in  the  performance  of  a  duty  in  its  public  capacity  as  a  com- 
mon carrier  of  messages.  In  all  such  actions,  sounding  in  tort,  the 
injured  party  is  not  limited  to  damages  which  might  reasonably  have 
been  within  the  contemplation  of  the  parties,  but  recovery  may  be 
had  "for  all  the  injurious  results  which  flow  therefrom,  by  ordinary 
natural  sequence,  without  the  interposition  of  any  other  negligent  act 
or  overpowering  force."  Mentzer  v.  Telegraph  Co.,  93  Iowa,  757, 
62  N.  W.  1,  28  L.  R.  A.  72,  57  Am.  St.  Rep.  294.     *     *     * 

"There  was  evidence  tending  to  show  that  immediate  delivery  was 
requested  and  that  the  agent  at  Winfield  knew  that  McPeek  was  ex- 
pecting a  message,  that  it  would  relate  to  the  capture  of  McPherson, 
and  that  prompt  delivery  was  required.  If  so,  while  he  may  not  have 
known  of  the  reward  being  offered,  he  may  well  be  credited  with  under- 
standing that  McPeek  was  putting  forth  his  efforts  to  accomplish  a 
purpose  from  which  he  anticipated  some  benefit  to  accrue  to  himself, 
/i^he  law  authorizes  the  ofifering  of  such  rewards,  and  it  is  not  too  strict 
I  a  rule  to  hold  the  defendant  responsible  for  such  losses  as  may  reason- 
ably be  anticipated  to  follow  its  negligence,  whether  informed  definitely 
what  these  may  be  or  not.  It  was  charged  with  knowledge  that  such 
a  reward  might  be  made,  and  it  might  reasonably  reckon  on  such  a  con- 
tingency, in  omitting  its  duty  with  reference  to  such  a  message.  Nor 
was  the  plaintiff  advised  that  the  reward  had  actually  been  offered  on 
October  22d,  though  he  understood  it  would  be,  and  was  acting  to  se- 
cure this  and  others  proposed  by  local  officers.  That  the  omission  of 
the  defendant  caused  greater  loss  than  he  then  supposed,  does  not  af- 
fect its  liability,  or  his  right  of  recovery.  Certainly  the  loss  of  the  re- 
ward was  the  direct  result  of  the  failure  to  arrest  and  deliver  Mc- 
Pherson to  the  proper  authorities,  for  this  was  the  very  condition  of 
fs  payment.' 
The  burden  was  on  the  plaintiff  to  prove  that  in  all  reasonable  prob- 
ability the  loss  resulted  from  the  negligence  of  the  defendant,  i  Hen- 
dershott  v.  Telegraph  Co.,  106  Iowa,  529,  76  N.  W.  828,  68  Am.  St. 
Rep.  313.  Had  the  plaintiff  proceeded  by  team  to  Morning  Sun,  with 
the  assistance  of  the  two  constables  and  another,  there  seems  no  good 
reason  to  doubt  that  he  would  have  arrested  McPherson,  who  had 
been  disarmed  by  his  wife.  This  is  not  absolutely  certain,  for  many 
contingencies  may  be  supposed  which  could  have  intervened.  While 
these  might  well  be  considered,  they  do  not  warrant  us  in  saying  that 
these  men  would  not  have  accomplished  that  which  has  often  been 


20!  t 


Ch.  1)  CERTAINTY    OF    PROOF. 

done  before,  and  which  is  ordinarily  done  by  officers  in  hke  situation. 
Whether  they  would  in  all  probability  have  succeeded,  was  for  the 
jury  to  determine.     *     *     * 


WHITE    et   al.    v.    MILLER    et    al. 

(Court  of  Appeals  of  New  York.  1877.    71  N.  Y.  118,  27  Am.  Rop.  13.) 

The  defendants  were  growers  of  garden  seeds  for  sale,  and  the 
plaintiffs  were  market  gardeners.  The  defendant  warranted  seeds  pur- 
chased by  plaintiffs  to  be  large  Bristol  cabbage  seed,  but  they  were 
instead  of  a  mixed  variety,  of  no  value,  except  as  food  for  cattle. 
105,000  plants  were  set  out,  of  which  100,000  lived ;  but  only  200  pro- 
duced Bristol  cabbages. 

Andrews,  J.^-     *     *     *     The  referee,  in  fixing  the  damages,  fol- 
lowed the  rule  laid  down  in  Passinger  v.  Thorburn,  34  N.  Y.  634,  90 
Am.  Dec.  753,  which  was  also  an  action  for  a  breach  of  warranty,  in 
the  sale  of  cabbage  seed.    The  defendant  in  that  case  warranted  the 
seed  to  be  Bristol  cabbage  seed,  and  that  it  would  produce  Bristol 
cabbage.     The  court  held,  all  the  judges  concurring,  that  the  plain- 
tiff was  entitled  to  recover  the  difference  in  value  between  the  crop 
raised  from  the  defective  seed,  and  a  crop  of  Bristol  cabbage,  such 
as  would  ordinarily  have  been  produced  in  the  year  in  which  the  seed 
was  to  be  sown.     The  learned  judge,  who  delivered  the  opinion,  re- 
ferred to  a  large  number  of  authorities  as  sustaining  the  rule  adopt- 
ed by  the  court;   and,  among  others,  to  the  case  of  Randall  v.  Roper, 
E.,  B.  &  E.  84,  in  which  it  was  held  that  in  an  action  on  a  warranty, 
m'adeby  the  defendants  to  the  plaintiff,  on  a  sale  by  the  former  to  the 
latter  of  seed  barley,  that  the  seed  sold  was  "chevalier"  seed  barley, 
but  which  was,  in  fact,  barley  of  an  inferior  quality;    the  plaintiifs, 
who  had  resold  the  barley,  with  a  similar  warranty,  could  recover  of 
their  vendors  the  loss  sustained  by  the  sub-vendees,  measured  by  the 
difference  in  value  between  the  inferior  crop  produced  and  that  which 
might  have  been  produced  from  "chevalier"  barley.    The  case  of  Pas- 
singer  V.  Thorburn  was  approved  in  Milburn  v.  Belloni,  39  N.  Y.  53, 
100  Am.  Dec.  403,  and  was  said  by  the  court  to  be  decisive  of  the 
case  then  under  consideration.     In  Wolcott  v.  Mount,  36  N.  J.  Law, 
262,  13  Am.  Rep.  438,  and  Flick  v.  Wetherbee,  20  Wis.  392,  the  rule 
adopted  in  Passinger  v.  Thorburn  was  approved  and  applied  by  the 
court.     We  think  \he  case  of  Passinger  v.  Thorburn  should  be  ad- 
hered to.     It  was  carefully  considered  and  decided,  and  we  are  not 
prepared  to  say  that  the  rule  there  adopted  is  a  departure  from  cor- 
rect principle.    Gains  prevented,  as  well  as  losses  sustained,  may  be  re- 
covered as  damages   for  a  breach  of  contract,  where  they  can  be 
rendered  reasonably  certain  by  evidence,  and  have  naturally  resulted 

82  Tart  of  the  opinion  Is  omitted,  and  the  statement  of  facts  is  rewritten. 


270  COMPENSATORY   DAMAGES.  (Part    5 

from  the  breach.  Masterton  v.  Mayor,  etc.,  7  Hill,  61,  42  Am.  Dec. 
38;  Griffin  v.  Colver,  16  N.  Y.  489,  69  Am.  Dec.  718;  Messmore  v. 
N.  Y.  Shot  &  Lead  Co.,  40  N.  Y.  422.  But  mere  contingent  or  spec- 
ulative gains  or  losses,  with  respect  to  which  no  means  exist  of  as- 
certaining with  any  certainty  whether  they  would  have  resulted  or 
not,  are  rejected,  and  the  jury  will  not  be  allowed  to  consider  them. 
Can  it  be  said  that  the  damages  allowed  in  Passinger  v.  Thorburn  are 
incapable  of  being  ascertained  with  reasonable  certainty  by  a  jury? 

The  character  of  the  season,  whether  favorable  or  unfavorable  for 
production;  the  manner  in  which  the  plants  set  were  cultivated;  the 
condition  of  the  ground ;  the  results  observed  in  the  same  vicinity 
where  cabbages  were  planted,  under  similar  circumstances ;  the  mar- 
ket value  of  Bristol  cabbages  when  the  crop  matured ;  the  value  of 
the  crop  raised  from  the  defective  seed;  these,  and  other  circumstan- 
ces, may  be  shown  to  aid  the  jury,  and  from  which  they  can  ascertain 
approximately  the  extent  of  the  damages  resulting  from  the  loss  of 
a  crop  of  a  particular  kind. 

The  referee  allowed  interest  on  the  damages  from  the  time  the  crop 
would  have  been  harvested  and  sold.  We  are  of  opinion  that  this  was 
erroneous.  The  demand  was  unliquidated,  and  the  amount  could 
not  be  determined  by  computation  simply,  or  reference  to  market  val- 
ues.    *     *     * 


STEVENS   et  al.   v.  YALE. 
(Supreme  Court  of  Michigan,  1897.    113  Mich.  680,  72  N.  W.  5.) 

The  plaintiffs,  retail  druggists,  purchased  of  defendant  an  order 
of  toilet  preparations,  "beautifiers  for  women,"  and  defendant  agreed 
to  print  plaintiffs'  names  at  the  bottom  of  all  defendant's  advertise- 
ments in  the  Detroit  papers  as  carrying  defendant's  preparations  for 
sale.  Breach,  that  after  eight  months  defendant  ceased  to  so  print 
plaintiffs'  names,  and  inserted  instead  that  of  another  house  as  whole- 
sale agents  in  Detroit.  Action  to  recover  damages  for  failure  to  so 
print  plaintiffs'  names.     Verdict  directed  for  defendant. 

Hooker,  J.^^  *  *  *  -^yg  j-^^g^j  ^q^.  discuss  the  question  of  the 
validity  of  this  contract.  If  it  be  treated  as  valid,  and  it  be  admitted 
that  there  was  a  breach  of  the  contract  by  the  defendant,  the  damages 
sought  to  be  recovered  were  speculative.  The  injury  suffered,  if  any, 
was  a  loss  of  such  profits  as  would  have  resulted  from  advertising, — 
a  matter  of  mere  conjecture,  depending  upon  the  number  who  might 
read  and  act  upon  the  advertisement.     *     *     * 

We  have  held  in  several  cases  that  loss  of  profits  may  be  recovered 
where  the  loss  of  profits  and  their  amount  can  be  shown  with  cer- 
tainty.   But  here  the  effect  of  this  failure  to  advertise  is  most  uncer- 

83  Part  of  the  opinion  is  omitted,  and  the  statement  of  facts  is  rewriften. 


Ch.  1)  CERTAINTY    OF    PUOOF.  271 

tain,  and  the  circuit  court  was  correct  in  holding  that  such  damages 
were  not  recoverable. 

Counsel  for  the  defendant  urge  that  a  new  trial  should  be  granted 
because  the  plaintiff  was  entitled  to  nominal  damages.  This  action 
was  commenced  in  circuit  court,  and  under  the  statute  the  plaintiff 
would  not  be  entitled  to  costs  upon  a  judgment  for  nominal  damages, 
and  the  judgment  should  not  be  reversed  upon  this  ground.  Hickey 
V.  Baird,  9  Mich.  38.     *     *     * 


WRIGHT  V.   MULVANEY. 

(Supreme  Court  of  Wisconsin,  1890     78  Wis.  89,  46  N.  W.  1045, 
9  L.  R.  A.  807,  23  Am.  St.  Rep.  393.) 

The  plaintiffs  were  fishermen  in  Green  Bay,  and  had  a  pot  net  set 
near  the  direct  route  from  the  mouth  of  the  Oconto  river  to  Peshtigo 
Harbor.  The  defendant  negligently  ran  into  the  net  with  a  steam  tug 
and  injured  it  while  en  route  to  Peshtigo  Harbor. 

Lyon,  J.^*     *     *     *     There  is,  included  in  the  judgment,  $"200  for 
damages  to  the  plaintiffs'  business  resulting  from  the  injury  to  their 
net— that  is  to  say,  for  loss  of  the  profits  of  their  business  during  the 
time  necessarily  required  to  restore  the  net.     The  net  was  never  re- 
stored, and  the  plaintiffs'  fishing  in  that  vicinity  for  the  remamder  of 
the  season  was  all  done  with  another  net  located  about  one-half  mile 
south  of  the  injured  net.    The  testimony  tends  to  show  that  the  plain- 
tiffs lifted  the  pot  of  their  net  and  took  the  fish  therefrom  about  every 
alternate  day  before  the  injury;  that  the  profits  of  each  lift  were  from 
$40  to  $50;   and  that  it  would  have  required  about  10  days  to  restore 
the  injured  net,  had  it  been  restored.     There  was  no  other  testimony 
introduced  bearing  upon  the  question  of  profits.    Hence,  the  jury  nec- 
essarily assessed  the  damages  to  plaintiffs'  business  on  the  basis  of 
four  or  five  lifts  of  fish,  at  a  profit  of  from  $40  to  $50  each.    There 
was  no  testimony  as  to  whether  the  conditions  of  successful  fishmg 
remained  for  10  days  after  the  injury  as  favorable  as  they  were  imme- 
diately before  the  same,— none  to  show  that  the  weather  contmued 
favorable  during  the  10  days ;    that  storms  did  not  intervene  to  mter- 
rupt  the  business ;  that  the  fish  continued  to  run  over  the  same  ground 
in  equal  abundance;    that  other  fishermen  operating  in  the  vicmity 
were  equallv  as  successful  in  their  business  after  as  before  the  injury; 
nor  that  the  market  price  of  fish  remained  as  high.    Without  any  testi- 
mony concerning  these  essential  conditions,  the  jury  must  have  made 
their  assessment  of  damages  to  plaintiffs'  business  largely  upon  mere 
conjecture.     They  must  have  assumed  without  proof  that  a  busmess 
proverbially  uncertain  in  results,  depending  for  its  success  upon  nu- 

8*  Part  of  the  opinion  is  omitted,  and  tbe  statement  of  fnets  is  rewritten. 


272  COMPENSATORY  DAMAGES.  (Part   5 

merous  conditions  which  the  persons  engaged  therein  cannot  control 
or  influence,  and  the  presence  or  absence  of  which  at  a  future  time 
cannot  be  foretold  with  any  degree  of  accuracy,  would  have  con- 
tinued after  the  net  was  injured  to  be  just  as  profitable  as  it  was  be- 
fore the  injury.  Such  an  assumption,  under  such  circumstances,  is 
unwarranted  in  the  law,  and  probably  we  should  be  compelled  to  re- 
verse this  judgment  for  want  of  sufficient  evidence  to  support  the 
assessment  of  damages  for  profits,  even  though  it  should  be  held  that, 
under  proper  proofs,  the  plaintiffs  might  recover  prospective  profits. 
But  we  are  of  the  opinion  that  prospective  profits  cannot  properly  be 
awarded  as  damages  in  this  case.  The  reason  therefor  has  already 
been  suggested,  which  is  that  under  any  state  of  the  testimony,  in  view 
of  the  character  and  conditions  of  the  business,  the  jury  could  have  no 
sufficient  basis  for  ascertaining  such  prospective  profits.  At  best,  the 
assessment  thereof  must  necessarily  rest  largely  upon  conjecture. 
This  feature  of  the  case  brings  it  within  the  rule  of  Bierbach  v.  Rub- 
ber Co.,  54  Wis.  208,  11  N.  W.  514,  41  Am.  Rep.  19,  and  Anderson 
v.  Sloane,  72  Wis.  566,  40  N.  W.  214,  7  Am.  St.  Rep.  885,  and  the 
cases  cited  in  the  opinions  therein.  In  the  latter  case,  Mr.  Justice 
Taylor  has  pointed  out  the  distinction  between  that  case  and  those 
cases  in  this  court  in  which  prospective  profits  have  been  allowed  as 
damages.  It  is  unnecessary  to  repeat  the  discussion  here.  It  is  some- 
times quite  difficult  to  determine  to  which  of  the  above  classes  a  given 
case  belongs,  and  such  determination  must  be  governed  largely  by  the 
special  circumstances  of  each  particular  case.  The  jury  assessed  the 
damages  to  the  net  at  $110.  This  includes  not  only  the  cost  of  re- 
pairing it,  but  also  the  value  of  the  services  of  the  plaintiffs  and  their 
servants  in  resetting  it.  We  conclude  that  the  plaintiffs  are  entitled  to 
recover  no  other  damages,  except  the  value  of  the  use  of  the  net  dur- 
ing the  time  they  were  necessarily  deprived  of  its  use,  which  was 
about  10  days.     *     *     * 


DENNIS  V.  MAXFIELD  et  al. 

(Supreme  Judicial  Ck)urt  of  Massachusetts,  18G5.     10  Allen,  138.) 

The  defendant  employed  plaintiff  as  master  of  a  ship  on  a  whaling 
voyage  of  five  years'  duration,  compensation  to  be  a  per  cent,  on  the 
net  proceeds  of  the  whole  cargo  and  on  all  sperm  oil  taken,  with  a 
provision  for  additional  sums  in  proportion  as  the  cargo  might  exceed 
$70,000.  The  vessel  sailed  May  17,  1858,  but  plaintiff  was  wrong- 
fully deposed  at  the  Sandwich  Islands  on  November  20,  1860.  On  the 
trial,  no  evidence  was  presented  of  what  the  vessel  afterwards  actual- 
ly earned,  but  some  evidence  was  presented  in  support  of  plaintiff''s 
claim  for  damages  beyond  the  earnings  already  had  at  the  time  he  was 
deposed. 


Ch.  1)  CERTAINTY    OF    PROOF.  27i^ 

BiGELOW,  C.  J.®'  *  *  *  'Pile  plaintiff  has  a  right  to  recover 
as  damages  the  amount  wliich  is  lawfully  due  to  him  under  the  stip- 
ulations by  which  his  compensation  for  these  services  was  to  be  regu- 
lated and  governed.  This  includes  the  wages  which  he  had  earned 
previous  to  his  removal,  as  well  as  those  which  he  was  prevented 
from  earning  by  his  wrongful  discharge?|  The  breach  of  the  contract 
by  the  defendants  has  created  only  one  c^use  of  action  in  favor  of  the 
plaintiff.  His  compensation  for  this  breach  necessarily  embraces  all 
that  he  is  entitled  to  recover  under  the  contract.  Indeed  his  right  to 
recover  anything,  as  well  that  which  was  earned  before  as  that  which 
would  have  been  earned  if  he  had  not  been  discharged,  depends  on 
the  question  whether  he  has  performed  his  part  of  the  contract.  A 
party  cannot  sever  a  claim  for  damages  arising  under  one  contract  so 
as  to  make  two  distinct  and  substantive  causes  of  action.  We  are 
therefore  all  of  opinion  that  the  sum  due  to  the  plaintiff  prior  to  his 
discharge,  when  it  shall  have  been  ascertained  by  an  assessor,  ought 
to  be  added  to  the  amount  of  the  verdict. 

We  think  it  equally  clear  that  the  plaintiff  is  entitled  to  recover  in 
this  action  his  share  or  proportion  of  the  future  profits  or  earnings  of 
the  vessel  after  his  discharge  by  the  defendants.  'These  constitute  a 
valid  claim  for  damages,  because  the  parties  have  expressly  stipulated 
that  profits  should  be  the  basis  on  which  a  portion  of  the  plaintiff's 
compensation  for  services  should  be  reckoned.  '  These  earnings  or 
profits  were  therefore  within  the  direct  contemplation  of  the  parties, 
when  the  contract  was  entered  into.  ^They  are  undoubtedly  in  their 
nature  contingent  and  speculative  and  difficult  of  estimation ;  but, 
being  made  by  express  agreement  of  the  parties  of  the  essence  of  the 
contract,  we  do  not  see  how  they  can  be  excluded  in  ascertaining  the 
compensation  to  which  the  plaintiff  is  entitled.^  Would  it  be  a  good 
bar  to  a  claim  for  damages  for  breach  of  articles  of  co-partnership, 
that  the  profits  of  the  contemplated  business  were  uncertain,  contin- 
gent and  difficult  of  proof,  and  could  it  be  held  for  this  reason  that 
no  recovery  could  be  had  in  case  of  a  breach  of  such  a  contract?  Or 
in  an  action  on  a  policy  of  insurance  on  profits,  would  it  be  a  valid  de- 
fence in  the  event  of  loss  to  say  that  no  damages  could  be  claimed  or 
proved  because  the  subject  of  insurance  was  merely  speculative,  and 
the  data  on  which  the  profits  must  be  calculated  were  necessarily  in- 
adequate and  insufficient  to  constitute  a  safe  basis  on  which  to  rest 
a  claim  for  indemnity?  The  answer  is,  that  in  such  cases  the  par- 
ties, having  by  their  contract  adopted  a  contingent,  uncertain  and  spec- 
ulative measure  of  damages,  must  abide  by  it,  and  courts  and  juries 
must  approximate  as  nearly  as  possible  to  the  truth  in  endeavoring  to 
ascertain  the  amount  which  a  party  may  be  entitled  to  recover  on  such 
a  contract  in  the  event  of  a  breach.    If  this  is  not  the  rule  of  law,  we 

86  Part  of  the  opinion  Is  omitted,  and  the  statement  of  facts  is  rewritten. 
Gilb.Dam.— 18 


274  COMPENSATORY  DAMAGES.  (Part    5 

do  not  see  that  there  is  any  alternative  short  of  declaring  that  where 
parties  negotiate  for  compensation  or  indemnity  in  the  form  of  an 
agreement  for  profits  or  a  share  of  them,  no  recovery  can  be  had  on 
such  a  contract  in  a  court  of  law — a  proposition  which  is  manifestly 
absurd.    *    *     * 


LUND  V.  TYLER. 
(Supreme  Court  of  Iowa,  1901.    115  Iowa,  236,  88  N.  W.  333.) 

Action  to  recover  damages  for  assault  and  battery.  Verdict  and 
judgment  for  plaintiff.    Defendant  appeals.    Affirmed. 

McCivAiN,  J.®®  *  *  *  piaintifT,  as  a  witness,  testified  that  at 
the  time  of  the  injury  he  was  engaged  in  fishing  for  a  living,  and  that 
he  lost  two  weeks'  time  in  consequence  of  defendant's  acts.  Appel- 
lant argues  that  plaintiff  was  improperly  allowed  to  answer  as  to  the 
reasonable  worth  of  his  time.  Certamly  plaintiff  might  recover  for 
loss  of  earnings  during  the  time.  The  business  was  one  involving  not 
speculative  profits  but  mainly  the  personal  efforts  of  the  plaintiff,  the 
profits  in  which  could  be  considered  as  earnings,  and  therefore  loss  of 
time  therein  might  be  shown  as  resulting  in  loss  of  earnings.  Kinney 
v.  Crocker,  18  Wis.  74,  82.  It  seems  to  us  that  the  question  properly 
called  for  an  answer  as  to  what  plaintiff's  reasonable  earnings  during 
such  time  would  have  been.  If  defendant  desired  more  specific  in- 
formation, he  could  have  secured  it  by  cross-examination.     *     *     * 


RICHMOND  &   D.   R.    CO.   v.   ALLISON. 
(Supreme  Court  of  Georgia,  1890.    86  Ga.  145,  12  S.  E.  352,  11  L.  R.  A.  43.) 

Allison  sued  the  railroad  company  for  damages  for  personal  inju- 
ries. He  alleged  in  his  declaration,  among  other  things,  that,  at  the 
time  he  was  injured,  he  was  a  postal  clerk  earning  $1,150  a  year,  with 
prospects  for  an  immediate  promotion  to  a  salary  of  $1,300  a  year, 
and  excellent  prospects  for  promotion  in  his  life  beyond  the  highest 
wages  paid  to  postal  clerks ;  and  that,  when  he  was  hurt,  he  was  23 
years  old.    Judgment  reversed, 

Simmons,  J.^^  *  *  *  'p^g  view  we  take  of  the  case  renders  it 
unnecessary  to  discuss  any  of  these  grounds  except  the  fifth  and  the 
ninth.  The  fifth  is  as  follows:  ''Because  the  court  erred  in  charging 
the  jury  as  follows:  'Another  item  of  damages  alleged  by  the  plain- 
tiff is  for  permanent  injuries.  He  says  that  he  has  been  permanently 
injured,  and,  by  reason  thereof,  his  capacity  to  work  and  earn  money 
by  his  labor  throughout  his  future  life  has  been  practically  destroyed. 

86  Part  of  the  opinion  is  omitted. 


Ch.  1)  CERTAINTY    OF    PUOOF.  27") 

If  this  be  true  he  would  be  entitled  to  further  compensation  on  that 
account.  The  burden  is  on  the  plaintiff  to  show  the  fact  that  his  ca- 
pacity to  labor  and  earn  money  has  been  permiinently  impaired,  and 
the  extent  of  such  impairment,  or  to  furnish  data  to  the  jury,  from 
which  they  may  be  able  to  ascertain  his  financial  loss  in  this  respect. 
In  passing-  upon  this  question,  you  would  ascertain  from  the  evidence 
whether  the  plaintiff's  capacity  to  labor  and  earn  money  is,  in  point 
of  fact,  practically  destroyed,  or  in  part  impaired,  by  his  injuries,  and, 
if  so,  the  extent  of  such  impairment,  and  whether  it  will  extend  to  the 
future,  and  through  the  remainder  of  his  life;  and,  if  you  so  find,  you 
will  award  him  such  a  sum  as  you  think  reasonable  and  just,  in  view 
of  the  evidence  and  the  extent  of  such  injury,  and  in  view  of  all  the 
facts  and  circumstances  of  this  case,  as  disclosed  to  you  in  the  evidence. 
If  you  believe  from  the  evidence  that  the  plaintiff  has  not  suffered  any 
permanent  injury  as  the  result  of  the  injuries  mentioned  in  the  evi- 
dence, you  would  not  allow  him  anything  in  the  way  of  damages  for 
a  permanent  injury.  No  fixed  rule  exists  for  estimating  this  sort  of 
damage.  The  plaintiff's  age,  his  habits,  his  strength,  sex,  vocation, 
the  rate  of  wages  earned  by  him  in  the  past  by  his  labor,  his  prospects 
of  obtaining  steady,  remunerative  employment  in  the  future,  pros- 
pects of  increased  earnings  in  the  future  by  additional  experience 
and  skill  acquired,  if  there  be  evidence  on  this  point,  and  that  ev- 
idence, in  your  opinion,  is  definite  and  tangible,  these  circumstan- 
ces in  so  far  as  they  may  be  illustrated  by  the  evidence,  are  all  cir- 
cumstances proper  to  be  taken  into  account.'  "  The  plaintiff  in  er- 
ror objects  to  that  portion  of  the  charge  set  out  which  says,  "No  fix- 
ed rule  exists  for  estimating  this  sort  of  damage,"  and  insists 
that  a  fixed  rule  does  exist,  to  wit,  that  such  a  sum  should  be  al- 
lowed the  plaintiff  as  would  make  his  future  income  the  same  as  it 
would  have  been  had  he  not  been  injured,  taking  into  consideration 
the  probabilities  of  disease,  decreased  capacity  to  labor,  and  the  du- 
ration of  life.  It  is  insisted  that  the  charge,  as  given,  puts  no  limit 
upon  the  finding  of  the  jury;  that,  while  it  calls  to  their  attention  ele- 
ments which  they  could  consider,  it  does  not  restrict  them  by  the  fix- 
ation of  a  principle  which  should  control  their  conclusion.  This  court 
has  considered  this  question  upon  different  occasions,  and  in  several 
cases  has  said  that  there  is  no  "Procrustean  rule,"  or  fixed  rule,  in 
cases  of  this  kind.     *     *     * 

The  last  case  in  which  the  question  was  considered  was  Railway  Co. 
V.  Freeman,  83  Ga.  586,  10  S.  E.  277,  where  the  exact  words  com- 
plained of  were  approved  by  this  court.  Upon  the  request  of  coun- 
sel for  the  plaintiff  in  error,  we  allowed  him  to  review  that  decision. 
We  have  carefully  considered  his  argument,  and  have  devoted  much 
time  to  reading  the  text-books  and  reports  of  cases  decided  by  other 
courts,  to  ascertain  if  we  could  find  any  authority  or  decision  holding 
that  there  is  a -fixed  rule  to  be  given  to  the  jury,  which  must  control 
them  in  estimating  the  damages  to  a  person  who  has  been  permanently 


276  COMPENSATORY  DAMAGES.  (Part    5 

injured  by  the  carelessness  and  negligence  of  a  railroad  company,  or 
natural  person,  but  we  have  been  unable  to  find  a  decision  of  any 
court,  or  a  dictum  of  any  text-writer,  holding  that  there  is  a  fixed  rule 
for  measuring  the  damages  in  such  cases;  and,  in  the,^. nature  of 
things,  it  is  impossible  for  a  court  to  prescribe  any  fixed  rule,  because 
it  is  impossible  to  prove  such  exact  data  as  would  authorize  a  court 
to  prescribe  one.  It  is  impossible  for  any  witness  to  testify  to  the 
exact  time  that  the  injured  person  would  have  lived,  if  he  had  not 
been  injured.  It  is  impossible  to  say  whether  the  person  would  have 
remained  in  good  health  during  his  whole  life,  or  whether  he  would 
have  lost  little  or  much  time  by  sickness  or  idleness  or  the  loss  of  an 
opportunity  to  labor.  It  is  impossible  to  say  whether  he  would  have 
continued  to  earn  the  same  amount  of  money  during  his  whole  life; 
whether  he  would  have  earned  more,  and  how  much  more,  or  less, 
and  how  much  less ;  whether  he  would  have  remained  in  the  same  oc- 
cupation, or  would  have  abandoned  that,  and  pursued  another  more 
lucrative,  or  less  so.  Unless  these  and  other  facts  which  might  be 
enumerated  could  be  shown  the  jury,  we  do  not  see  how  a  fixed  rule 
to  measure  the  damages  for  a  permanent  injury  could  be  prescribed 
to  the  jury.  It  may  be  said,  however,  that  the  life  tables  put  in  evi- 
dence would  show  a  man's  expectancy  of  life,  and  that  the  amount  he 
was  earning  at  the  time  he  was  injured  would  be  a  sufficient  basis  up- 
on which  to  prescribe  such  a  rule ;  but  we  do  not  think  that  this 
would  in  all  cases  be  fair,  either  to  the  plaintiflf  or  to  the  railroad  com- 
pany. If  the  plaintiff  were  a  young  man  of  character  and  capacity 
and  industry,  and  had  chosen  his  occupation,  and  commenced  its  pur- 
suit, his  yearly  income  at  first  might  be  small,  but  in  a  few  years,  he 
might  be  able  to  increase  it  very  largely ;  yet,  under  the  rule  contend- 
ed for  he  would  be  confined  during  his  life  to  the  small  income  he  was 
making  at  the  commencement.  On  the  other  hand,  if  the  plaintiff 
were  an  aged  or  a  middle-aged  person,  making  a  large  yearly  income, 
it  would  be  unfair  to  the  railroad  company  to  take  that  income  and  his 
expectancy  of  life  as  the  sole  basis  to  determine  the  amount  of  his  re- 
covery; because  our  experience  shows  that  a  man  in  declining  years 
has  not  ordinarily  the  same  capacity  to  labor  and  earn  money  as  a 
young  man.  It  is  then  that  sickness,  inability,  and  indisposition  to 
labor  come  upon  him  more  and  more  each  year,  as  he  grows  older. 
These  and  like  facts  should  then  be  taken  into  consideration  by  the 
jury  in  behalf  of  the  railroad  company.  None  of  these  things  can  be 
proved  with  such  exactness  as  would  authorize  a  court  to  prescribe 
a  fixed  rule. 

On  the  contrary,  in  the  important  and  much-considered  case  of 
Phillips  V.  Railway,  above  cited  [4  Q.  B.  Div.  406,  5  Q.  B.  Div.  78, 
5  C.  P.  Div.  280,  and  49  Law  J.  O.'B.  233],  the  judge's  strongly  ap- 
proved the  usual  practice  of  instructing  the  jury  in  general  terms  to 
award  a  fair  and  reasonable  compensation,  taking  into  consideration 
what  the  plaintiff's  income  would  probably  have  been,  how  long  it 


Ch.  1)  CERTAINTY    OF    PROOF.  277 

would  have  lasted,  and  all  the  contingencies  to  which  it  was  liable ;  and 
as  strongly  deprecated  undertaking  to  bind  them  by  precise  mathe- 
matical rules  in  deciding  a  question  involving  so  many  contingencies 
incapable  of  exact  estimate  or  proof.  We  therefore  think  that  it  is 
better  for  both  parties  to  let  the  jury  look  at  these  things  as  a  whole, 
in  the  light  of  common  sense  and  their  own  experience,  and  let  them 
make  such  a  compensation  in  their  verdict  as  would  be  reasonable 
and  just  to  both  parties,  not  giving  to  the  plaintiff  a  large  sum  with 
the  purpose  of  enriching  him,  but  compensating  him  for  the  loss  of 
money  which  he  would  probably  earn  had  he  not  been  injured,  and 
thereby  prevented  by  the  negligence  of  the  defendant.  These  remarks, 
of  course,  apply  only  to  the  measure  of  damages  for  the  permanent 
injury.  It  is  not  contended  that  any  fixed  rule  can  be  prescribed  as 
a  measure  of  damages  for  pain  and  suffering.  We  therefore  reaf- 
firm the  ruling  in  Railroad  Co.  v.  Freeman,  supra.     *     *     *    _ 

The  ninth  ground  complains  that  the  court  erred  in  admitting  the 
following  evidence,  over  the  objection  of  counsel  for  the  defendant, 
to  wit:   "Question.    How  soon  after  his  injury  [referring  to  ]Mr.  Al- 
lison] were  there  any  vacancies  to  which  promotions  could  have  tak- 
en place?    Answer.  Vacancies  were  shortly  afterwards;    say  certainly 
in  the  course  of  the  next  three  to  six  months,  I  think,  after  Allison 
was  hurt.    According  to  Mr.  Allison's  standing,  and  the  classification 
w^hich  I  give,  his  prospects  for  promotion  to  one  of  these  places  was 
good."     The  defendant  objected  to  this  testimony,  and  all  other  ev- 
fdence  of  the  witness,  tending  to  show  prospects  of  promotion,  as  be- 
ing simply  the  opinion  of  the  witness,  and  showing  a  possibility  too 
remote  to  be  the  basis  of  consideration  by  the  jury  in  finding  damages- 
We  think  this  exception  is  well  taken,  and  that  the  court  erred  in  al- 
lowing the  testimony  complained  of  to  go  to  the  jury.    The  testimony 
of  this  witness  shows,  in  substance,  that  he  was  the  assistant  superin- 
tendent of  the  railway  mail  service  of  the  fourth  division;    that  Al- 
lison was  a  postal  clerk  under  him,  and  that  he  had  special  supervi- 
sion of  Allison's  record  and  work;   that  the  next  class  above  Allison 
in  the  line  of  promotion  at  the  time  he  was  injured  was  "class  5,"  and 
that  the  salary  in  that  class  was  $1,300  a  year;   that  Allison  was  re- 
ceiving, when  injured,  $1,150;    that  Allison's  standing  in  regard  to 
the  basis  of  promotion  was  "first-class";    that  there  was  no  vacancy 
in  the  class  above  Allison  at  the  time  he  was  injured,  but  two  vacan- 
cies occurred  in  the  course  of  from  three  to  six  months  thereafter; 
that  there  were  three  men  of  Allison's  class,  including  Allison,  and 
that  the  other  two  stood  as  well  as  he  did,  and  both  were  older  than 
Allison.     One  had  been  in  the  service  longer  and  the  other  a  shorter 
time  than  Allison.     Political  considerations  enter  somewhat  into  the 
appointment  of  clerks.     The  promoting  power  is  at  Washington ;    the 
office  here  is  the  recommending  power     A  vacancy  in  the  class  above 
Allison  might  be  filled  sometimes  from  other  routes,  and  men  taken 
from  another  route,  and  put  in,  who  occupy,  say,  a  second  rank.     It 


278  COMPENSATORY   DAMAGES.  (Part    5 

is  in  the  power  of  the  department  under  the  rules  to  do  that.  There 
is  no  certainty  at  all  when  there  is  a  vacancy  in  a  position  of  chief 
clerk  (the  clerk  in  charge),  that  one  of  a  lower  grade  on  the  same 
route  will  go  up;  no  more  than  in  any  other  business.  It  is  not  guar- 
anteed. We  think  this  evidence  shows  that  Allison's  promotion  was 
too  uncertain,  and  the  possibility  of  an  increase  of  his  salary  from 
$1,150  to  $1,300  too  remote,  to  go  to  the  jury,  and  for  them  to  base 
a  verdict  thereon.^  While  it  is  proper  in  cases  of  this  kind  to  prove 
the  age,  habits,  health,  occupation,  expectation  of  life,  ability  to  labor, 
and  probable  increase  or  diminution  of  that  ability  with  lapse  of  time, 
the  rate  of  wages,  etc.,  and  then  leave  it  to  the  jury  to  assess  the  dam- 
ages, we  think  it  improper  to  allow  proof  of  a  particular  possibility, 
or  even  probability,  of  an  increase  of  wages  by  appointment  to  a  high- 
er public  office,  especially  where,  as  in  this  case,  the  appointment  is 
somewhat  controlled  by  political  reasons.  The  deputy  clerk  of  this 
court,  for  example,  is  very  efficient  and  faithful,  and,  if  there  should 
be  a  vacancy  in  the  office  of  clerk  of  the  court,  it  is  not  only  possible, 
but  very  probable,  that  he  would  be  appointed  to  fill  the  vacancy,  there- 
by obtaining  a  much  larger  salary  than  he  now  receives;  but  if  he 
should  be  injured  as  Allison  was,  and  were  to  sue  the  railroad  compa- 
ny for  damages,  we  do  not  think  it  would  be  competent  for  him  to 
prove  the  possibility,  or  probability,  of  his  appointment  to  fill  a  vacan- 
cy in  the  office  of  clerk,  especially  as  the  personnel  of  the  court,  upon 
which  such  appointment  must  depend,  might  change  in  the  mean  time. 
To  allow  the  jury  to  assess  damages  in  behalf  of  the  plaintiff,  on  the 
basis  of  a  large  income  arising  from  a  public  office  which  he  has  nev- 
er received,  and  which  is  merely  in  expectancy,  and  might  never  be  re- 
ceived, or,  if  received  at  all,  might  come  to  him  at  some  remote  and 
uncertain  period,  would  be  wrong,  and  unjust  to  the  defendant.  We 
believe  the  rule  of  most  of  the  railroads  in  this  state  is  to  promote 
their  employes.  An  employe  commences  at  the  lowest  grade,  and,  if 
he  is  competent,  capable,  and  efficient,  he  is  very  likely  to  be  promoted 
upon  the  happening  of  a  vacancy  above  him.  If  one  occupying  a  low- 
er grade  of  service  were  injured,  would  he  be  allowed  to  prove,  un- 
less he  had  a  contract  to  that  effect,  that  his  prospects  of  promotion  to 
a  higher  grade  and  better  salary  were  good,  and  would  the  jury  be 
allowed  to  base  their  calculation  and  estimate  of  the  damages  upon  a 
much  larger  salary,  which  he  had  never  received,  but  merely  had  a 
prospect  of  receiving?  It  will  be  observed  that  the  testimony  in  this 
case  shows  that  there  were  two  others  in  the  same  class  with  Allison, 
equally  competent  and  efficient  as  he  was,  and  it  is  by  no  means  cer- 
tain that  Allison  would  have  been  preferred  to  each  of  them,  in  case 
of  vacancy,  and  promoted  above  them.  So  it  could  not  be  said  that 
he  was  in  the  direct  line  of  promotion.  Pierce,  R.  R.  303 ;  Brown  v. 
Cummings,  7  Allen  (Mass.)  509;  Boyce  v.  Bayhffe,  1  Camp.  58; 
Brown  v.  Railway  Co.,  64  Iowa,  656,  21  N.  W.  193.     *     *     *  ss 

88  See,  also,  Hoey  v.  Felton,  ante,  p.  167. 


Q\^^  l^  CERTAINTY    OF    PUOOF.  279 

NEW    JERSEY    EXPRESS    CO.    v.    NICHOLS. 

(Court  of  EIrrors  and  Appeals  of  New  Jersey,  18G7.    33  N.  J.  Law.  434, 
97  Am.   Dec.  722.) 

Depue,  J.^°     *     *     *     The  plaintiff,  on  his  examination  in  chief, 
after  provini^  that  his  business  was  that  of  an  architect,  was  asked  the 
following  question :    "What  was  your  average  annual  profits  in  your 
business?"     To  which  he  answered,  "The  average  was  about  twen- 
ty-five hundred  dollars— that  is,  the  average  income."    When  the  dep- 
osition was  offered  to  be  read  in  evidence,  the  defendant's  counsel 
objected  to  the  reading  of  this  question  and  answer,  for  the  reason 
that,  if  read  in  evidence,  and  allowed  by  the  court  to  be  considered 
by  the  jury,  it  would  tend  to  lead  the  jury  to  an  indefinite  inquir>', 
which  would  be  contrary  to  law.     The  court  overruled  the  objection, 
and  permitted  the  question  and  answer  to  be  read  to  the  jury.     In 
actions  founded  on  contract,  evidence  of  the  loss  of  profits  resulting 
from  nonperformance  has,  in  some  instances,  been  rejected  as  too 
speculative  and  uncertain  to  be  made  the  means  of  arriving  at  compen- 
sation as  the  measure  of  damages.     But  in  actions  of  tort  where  the 
quantum  of  damages  is  very  much  within  the  discretion  of  the  jury, 
evidence  of  the  nature  and  extent  of  the  plaintiff's  business,  and  the 
o-eneral  rate  of  profit  he  has  realized  therefrom,  which  has  been  inter- 
nipted  by  the  defendant's  wrongful  act,  is  properly  received,  not  on 
the  ground  of  its  furnishing  a  measure  of  damages  to  be  adopted  by 
the  jury,  but  to  be  taken  into  consideration  by  the  jury,  to  guide  them 
in  the  eiercise  of  that  discretion  which,  to  a  certain  extent,  is  always 

vested  in  the  jury.     *     *     *  ,  ,.  i  • 

The  plaintiff  was  an  architect— a  business  depending  on  liis  per- 
sonal services  as  much  as  that  of  a  common  laborer,  a  clerk  or  a  nie- 
chanic  and  his  emoluments  were  the  result  of  his  own  earnings,  by 
reason  of  the  injuries  he  received,  he  was  for  a  time  incapacitated 
from  pursuing  his  occupation,  and  sustained  damages  by  reason  there- 
of These  damages  resulted  proximately  from  the  wrongful  act  of 
the  defendant's  servants,  and  obviously  should  be  included  in  the  com- 
pensation to  be  awarded  to  him.  To  what  extent  he  had  sustained 
pecuniary  injury  in  that  respect  must  depend  upon  the  nature  and 
extent  of  his  business;  and  the  jury  would  not  be  in  a  condition  to 
reach  any  correct  conclusion  on  that  subject,  unless  they  had  before 
them  some  evidence  of  the  value  of  the  services  to  himself. 

The  evidence  was  competent  in  the  cause  to  go  to  the  jury,  to  be 
taken  into  consideration  bv  them,  and  allowed  such  weight  as  they,  in 
the  exercise  of  good  sense  and  sound  discretion,  should  think  it  en- 
titled to.     *     *     ♦  " 

80  Part  of  the  opinion  Is  omitted. 

•oon  the  general  subject  of  certainty  as  to  profits  ""^^"f '  ^^^|i'^^: 
Willis  V.  City  of  Terry,  92  Iowa,  297.  UO  N.  W.   .2.,  2b  L.  U.  A.  1-4  (lbJ4). 


280  COMPENSATORY  DAMAGES.  (Part    5 

SECTION  3.— ENTIRETY  OF  RECOVERY. 
I.  Coexistence  of  Wrong  and  Loss. 


NATIONAL    COPPER    CO.    v.    MINNESOTA    MINING    CO. 

(Supreme  Court  of  Michigan,  1885.     57  Mich.  83,  23  N.  W.  781, 
58  Am.  Rep.  333.) 

Plaintiff  and  defendant  owned  adjacent  copper  mines.  The  defend- 
ant broke  through  into  plaintiff's  mine  in  about  1871,  having  in  1870 
begun  to  "rob"  the  mine;  i.  e.  stripping  all  the  mineral  to  be  found 
and  allowing  the  ground  to  settle.  The  plaintiff  did  practically  no  min- 
ing from  that  date  until  1880,  when  it  decided  to  resume.  Pumps 
were  put  in  to  remove  the  accumulation  of  water,  but  were  insufficient 
to  do  so,  the  water  gaining  over  them  each  year,  until  in  1883  a  large 
hole  was  found  from  the  defendant's  to  the  plaintiff's  mine  at  the 
fourth  level,  through  which  all  the  accumulation  of  water  from  the 
defendant's  abandoned  and  sunken  mine  was  pouring.  This  was  the 
same  hole  which  one  witness  had  seen  in  1870  or  1871  about  a  foot 
wide,  which  another  witness  in  1872  knew  to  be  about  6  by  5  feet, 
and  which  was  now  in  size  20  by  12  feet.  It  had  been  produced  by 
defendant's  blasting. 

CooLEY,  C.  J.^^  *  *  *  The  defendant  pleaded  the  general  is- 
sue with  notice  that  the  statute  of  limitations  would  be  relied  upon. 
The  plaintiff  recovered  a  large  judgment. 

The  time  limited  for  the  commencement  of  suit  for  trespass  upon 
lands  in  this  state  is  two  years  from  the  time  the  right  of  action  ac- 
crues. How.  Ann.  St.  §  8714.  This  action  was  commenced  in  May, 
1884,  and  it  is  not  claimed  that  damages  for  the  original  trespass  can 

Greene  v.  Goddard,  9  Mete.  (Mass.)  212  (1S45) ;  Love  v.  Ross,  4  Call  (Va.) 
590  (1795);  ^tna  L.  I.  Co.  v.  Nexsen,  84  Ind.  347,  43  Am.  Rep.  91  (1882); 
Wakeman  v.  Wheeler  &  W.  Co.,  101  N.  Y.  205,  4  N.  E.  264,  54  Am.  Rep.  676 
(1SS6) ;  Ferris  v.  Comstock,  33  Conn.  513  (1806) ;  Winslow  v.  Lane.  03  Me. 
161  (1873);  Hitchcock  v.  Sup.  T.  of  K.  of  M.  of  the  World,  100  Mich.  40,  58 
N.  W.  640,  43  Am.  St.  Rep.  423  (1894).  As  to  other  uncertainties,  see  Belair 
V.  C.  &  N.  W.  R.  R.  Co.,  43  Iowa,  676  (1876) ;  Richmond  &  D.  R.  R.  Co.  v. 
Elliott,  149  U.  S.  266,  13  Sup.  Ct  837,  37  L.  Ed.  728  (1893);  Brown  v.  Cum- 
mings.  7  Allen  (Mass.)  507  (1803);  Telegraph  Co.  v.  Crall,  39  Kan.  580,  18 
Pac.  719  (1888) ;  Mizner  v.  Frazier,  40  Mich.  592,  29  Am.  Rep.  502  (1879) ; 
Hoey  V.  Felton,  31  Law  J.  C.  P.  105  (1861).  As  to  uncertainties  in  the  growth 
of  crops,  see  Ferris  v.  Comstock,  F.  &  Co.,  33  Conn.  513  (1860);  Wolcott  v. 
Mount,  36  N.  J.  Law,  202,  13  Am.  Rep.  438  (1871);  Butler  v.  Moore,  OS  Ga. 
780,  45  Am.  Rep.  508  (1882) ;  S.  &  E.  T.  Ry.  Co.  v.  Joachimi,  58  Tex.  450  (1883). 
On  the  rules  of  certainty  as  applied  to  the  ascertainment  of  professional  in- 
comes, see  Walker  v.  Erie  R.  R.  Co.,  03  Barb.  (N.  Y.)  200  (1S72) ;  Nebraska 
City  V.  Campbell,  2  Black  (U.  S.)  590,  17  L.  Ed.  271  (1802) ;  Wade  v.  Leroy.  20 
How.  34,  15  L.  Ed.  813  (1857) ;  Ballon  v.  Farnum,  11  Allen  (Mass.)  73  (1805). 

81  Part  of  the  opinion  is  omitted,  and  the  statement  of  facts  is  rewritten. 


Ch.  1)  ENTIRETY    OF    RECOVERY.  -"^i 

be  recovered  in  it.  The  contention  of  the  plaintiff  may  be  succinctly 
stated  as  follows:  (1)  Had  the  plaintiff  instituted  suit  within  two 
years  from  the  original  trespass,  the  recovery  would  have  been  hmit- 
ed  to  such  damages  as  were  the  direct  and  immediate  result  of  the 
trespass.  The  subsequent  flowage  of  water  through  the  opening  was 
not  the  direct,  immediate,  or  necessary  result  of  breaking  down  the 
barriers;  therefore  no  damages  could  have  been  recovered  therefor 
in  an  action  so  brought.  (2)  Two  trespasses  may  be  the  result  of  one 
act.  In  other  words,  one  trespass  may  cause  another,  and  he  who  com- 
mits the  wrongful  act  in  such  a  case  will  be  responsible  for  both  tres- 
passes. (3)  In  this  case  no  action  accrued  for  the  flowage  of  water 
into  the  plaintiff's  mine  until  the  flowage  actually  took  place,  but  when 
the  flowage  occurred  as  a  result  of  defendant's  wrongful  act  it  was  a 
trespass,  and  if  it  continued  from  day  to  day  there  was  a  continuous 
trespass  for  which  repeated  actions  might  be  maintained. 

Upon  these  positions  the  plaintiff  plants  its  case,  and  unless  they 
are  sound  in  law  the  recovery  cannot  be  supported.  All  right  of  re- 
covery for  the  original  trespass,  which  consisted  in  breaking  through 
into  the  plaintiff's  mine,  was  long  since  barred,  and  it  is  not  claimed 
that  there  was,  from  the  time  of  the  first  wrong,  a  continuous  trespass 
which  can  give  a  right  of  action  now.  The  merely  leaving  an  open- 
ing between  the  two  mines  is  not  the  wrong  for  which  suit  is  brought, 
bu*t  it  is  the  flowing  of  water  through  the  opening  which  is  complained 
of  as  a  new  trespass;  the  original  wrongful  act  of  the  defendant 
in  breaking  through  being  the  cause,  and  the  injurious  consequence 
when  it  happened,  connecting  itself  with  the  cause  to  complete  the 
right  of  action. 

^In  support  of  its  contention  that  the  case  before  us  may  be  regard- 
ed as  one  of  continuous  trespass  from  the  first,  several  authorities 
are  cited  for  the  plaintiff,  which  may  be  briefly  noticed.  Among  them 
is  Holmes  v.  Wilson,  10  Adol.  &  E.  503.  It  appeared  in  that  case  that 
a  turnpike  company  had  built  buttresses  on  the  plaintiff's  land  for  the 
support  of  its  road.  The  act  was  a  trespass,  and  the  plaintiff  recover- 
ed damages  therefor;  but  this,  it  was  held,  did  not  preclude  its  mam- 
taining  a  subsequent  action  for  the  continuance  of  the  buttresses  where 
they  had  been  wrongfully  placed.  The  ground  of  the  decision  was 
that  in  the  first  suit  damages  could  be  recovered  only  for  the  contm- 
uance  of  the  trespass  to  the  time  of  its  institution.  There  could  be  no 
legal  presumption  that  the  turnpike  company  would  persist  in  its 
wrongful  conduct,  and  consequently,  prospective  damages,  which 
would  only  be  recoverable  on  the  ground  of  such  persistent  wrong- 
doing, would  not  have  been  within  the  compass  of  the  first  recovery. 
*     *     * 

In  Adams  v.  Railroad  Co.,  IS  Minn.  2G0  (Gil.  236),  and  Troy  v. 
Railroad  Co.,  23  N.  H.  83,  55  Am.  Dec.  177,  railroad  companies  which, 
by  trespass,  had  entered  upon  the  lands  of  individuals  and  construct- 
ed and  begun  the  operation  of  railroads,  were  held  liable  as  trespassers 


282  COMPENSATORY  DAMAGES.  (Part    5 

from  day  to  day  so  long  as  the  operation  of  the  road  was  continued. 
The  principle  of  decision  in  all  these  cases  is  clear  and  not  open  to 
question.  In  each  of  them  there  was  an  original  wrong,  but  there  was 
also  a  persistency  in  the  wrong  from  day  to  day;  the  plaintiff's  pos- 
session was  continually  invaded,  and  his  right  to  the  exclusive  occupa- 
tion and  enjoyment  of  his  freehold  continually  encroached  upon  and 
limited.  Each  day,  therefore,  the  plaintiff  suffered  a  new  wrong,  but 
no  single  suit  could  be  made  to  embrace  prospective  damages,  for  the 
reason  that  future  persistency  in  the  wrong  could  not  legally  be  as- 
sumed. 

To  make  these  cases  applicable,  it  is  necessary  that  it  should  appear 
that  the  action  of  the  defendant  has  been  continuously  wrongful  from 
the  first.  Whether  it  can  be  so  regarded  will  be  considered  further 
on.  The  plaintiff,  however,  does  not,  as  we  have  seen,  rely  exclusive- 
ly upon  this  view.  Its  case  is  likened  by  counsel  to  that  of  a  farmer, 
whose  fences  are  thrown  down  by  a  trespasser ;  the  cattle  of  the  tres- 
passer on  a  subsequent  day  entering  through  the  opening.  In  such  a 
case  it  is  said  there  are  two  trespasses :  the  one  consisting  in  throw- 
ing down  the  fences,  and  the  other  in  the  entry  of  the  cattle;  and  the 
right  of  action  for  the  latter  would  accrue  at  the  time  the  entry  was 
actually  made.  The  plaintiff  also  cites  and  relies  upon  a  number  of 
cases  in  which  the  act  of  the  party  which  furnishes  the  ground  of 
complaint  antedates  the  injurious  consequence,  as  the  original  tres- 
pass in  this  case  antedated  the  flowing  from  which  the  plaintiff  has 
suffered  damage. 

One  of  these  cases  is  Bank  of  Hartford  Co.  v.  Waterman,  26  Conn. 
324.  In  that  case  action  was  brought  against  a  sheriff  for  a  false  re- 
turn to  a  writ  of  attachment.  The  falsity  consisted  in  a  misdescription 
of  the  land  attached.  When  suit  was  brought  the  period  of  limitation, 
if  it  was  to  be  computed  from  the  time  the  return  was  made,  had  al- 
ready run;  but  under  the  statute  the  plaintiff  was  entitled  to  bring 
suit  only  after  he  had  taken  out  execution  and  had  a  return  made  up- 
on it,  which  would  show  a  necessity  for  a  resort  to  the  attached  lands. 
It  was  only  after  such  a  return  of  execution  that  the  plaintiff  would 
suffer  even  nominal  damage  from  the  official  misfeasance;  and  it  was 
therefore  a  necessary  consequence  that  the  time  of  limitation  must  be 
computed  from  that  time,  and  not  from  the  time  of  the  false  return. 

Another  case  is  that  of  McGuire  v.  Grant,  25  N.  J.  Law,  356,  67 
Am.  Dec.  49,  which  is  to  be  referred  to  the  same  principle.  The  de- 
fendant removed  the  lateral  support  to  the  plaintiff's  land  by  an  ex- 
cavation, made  within  his  own  boundaries.  Injury  subsequently  re- 
sulted to  the  plaintiff  in  consequence.  The  statute  of  limitations  was 
held  to  run  from  the  time  the  damage  occurred;  the  excavation  not 
being  of  itself  a  tort  until  damage  resulted.  The  case  of  Bonomi  v. 
Backhouse,  El.  Bl.  &  El.  622,  was  Hke  the  last  in  principle,  and  was 
decided  in  the  same  way. 


Ch.  1)  ENTIRETY    OF    RECOVERY.  2S3 

The  plaintiff  also,  in  this  connection,  likens  its  case  to  that  of  one 
who,  in  consequence  of  a  ditch  dug  upon  his  neighbor's  land,  has 
water  collected  and  thrown  upon  his  premises  to  his  injury.  It  is  not 
the  act  of  digging  the  ditch  that  sets  the  time  of  limitation  to  running 
in  such  a  case,  but  it  is  the  happening  of  the  injurious  consequence. 
The  case  supposed,  however,  is  not  a  case  of  trespass.  The  act  of 
digging  the  ditch  was  not  in  itself  a  wrongful  act.  The  owner  of 
land  is  at  liberty  to  dig  as  many  ditches  as  he  pleases  on  his  own  land, 
and  he  becomes  a  wrongdoer  only  when,  by  means  of  them,  he  causes 
injury  to  another.  If  he  floods  his  neighbor's  land  the  case  is  one 
of  nuisance,  and  every  successive  instance  of  flooding  is  a  new  injury. 
But  here,  as  in  the  case  of  a  continuous  trespass,  prospective  dam- 
ages cannot  be  taken  into  account,  because  it  must  be  presumed  that 
wrongful  conduct  will  be  abandoned  rather  than  persisted  in,  and  that 
the  party  will  either  fill  up  his  ditches  or  in  some  proper  way  guard 
against  the  recurrence  of  injury.     *     *     * 

The  case  of  Whitehouse  v.  Fellowes,  10  C.  B.  (N.  S.)  7G5,  was  one 
of  nuisance.  *  *  *  The  ruling  sustained  the  position  taken  for  the 
plaintiff  in  the  case,  which  was  thus  succinctly  stated  by  counsel  ar- 
guendo: "The  distinction  which  pervades  the  cases  is  this:  Where 
the  plaintiff  complains  of  a  trespass,  the  statute  runs  from  the  time 
when  the  act  of  trespass  was  committed,  except  in  the  case  of  a  con- 
tinuing trespass.  But  where  the  cause  of  action  is  not  in  itself  a  tres- 
pass, as  an  act  done  upon  a  man's  own  land,  and  the  cause  of  action 
is  the  consequential  injury  to  the  plaintiff,  there  the  period  of  limita- 
tion runs  from  the  time  the  damage  is  sustained." 

The  case  before  us  was  one  of  admitted  trespass,  from  which  im- 
mediate damage  resulted.  Had  suit  been  brought  at  that  time,  all 
the  natural  and  probable  damage  to  result  from  the  wrongful  act 
would  have  been  taken  into  account,  and  the  plaintiff  would  have  re- 
covered for  it.  But  there  was  no  continuous  trespass  from  that  time 
on.  The  defendant  had  built  no  structure  on  the  plaintiff's  premises, 
was  occupying  no  part  of  them  \vith  anything  it  had  placed  there,  and 
was  in  no  way  interrupting  the  plaintift''s  occupation  or  enjoyment. 
All  it  had  left  there  was  a  hole  in  the  wall.  But  there  is  no  analogy 
between  leaving  a  hole  in  a  wall  on  another's  premises  and  leaving 
houses  or  other  obstructions  there  to  incumber  or  hinder  his  occupa- 
tion ;  the  physical  hindrances  are  a  continuance  of  the  original  wrong- 
ful force,  but  the  hole  is  only  the  consequence  of  a  wrongful  force 
which  ceased  to  operate  the  moment  it  was  made. 

If,  therefore,  the  plaintiff  had  brought  suit  more  than  two  years 
after  the  original  trespass,  and  before  the  flooding  of  its  mine  by  water 
flowing  through  the  opening  had  begun,  and  if  the  statute  of  lim- 
itations had  been  pleaded,  there  could  have  been  no  recovery.  The 
action  for  the  original  wrong  would  then  have  been  barred,  and  there 
had  been  no  repetition  of  the  injury  in  the  mean  time  to  give  a  new 


284  COMPENSATORY   DAMAGES.  (Part    5 

cause  of  action.  The  mere  continuance  of  the  opening  in  the  wall 
could  not  be  a  continuous  damage.    Lloyd  v.  Wigney,  6  Bing.  489. 

The  right  of  action,  if  any,  for  which  the  plaintiff  can  complain, 
must  therefore  arise  from  the  flowing  itself  as  a  wrongful  act;  there 
being  no  longer  any  action  for  the  original  breaking,  and  no  con- 
tinuous acts  of  wrong  from  that  time  until  the  flowing  began.  The 
flowage  caused  a  damage  to  the  plaintiff;  but  damage  alone  does  not 
give  a  right  of  action;  there  must  be  a  concurrence  of  wrong  and 
damage.  The  wrong,  then,  must  be  found  in  leaving  the  opening  un- 
closed and  permitting  the  water  to  flow  through.  It  must  therefore 
rest  upon  an  obligation  on  the  part  of  the  defendant  either  to  close 
the  opening,  because  persons  for  whose  acts  it  was  responsible  had 
made  it,  or  to  restrain  water  which  had  collected  on  its  own  premises 
from  flowing  upon  the  premises  of  the  plaintiff  to  its  injury.  The  lat- 
ter seems  to  be  the  ground  upon  which  the  plaintiff  chiefly  relies  for 
a  recovery. 

In  the  argument  made  for  the  plaintiff  in  this  court  stress  is  laid 
upon  the  fact  that  the  damage  which  has  actually  resulted  from  the 
flooding  could  not  have  been  anticipated  at  the  time  of  the  original 
trespass,  and  therefore  could  not  then  have  been  recovered  for.  This 
consideration,  it  is  urged,  ought  to  be  decisive.  But,  while  we  agree 
that  it  is  to  be  considered  in  the  case  for  what  it  is  worth,  it  is  by  no 
means  necessarily  conclusive.  '  The  plaintiff  must  fix  some  distinct 
wrong  upon  the  defendant  within  the  period  of  statutory  limitation, 
or  the  action  must  fail;  and  there  is  no  such  wrong  in  this  case  unless 
the  failure  to  prevent  the  flowing  constitutes  one.  The  original  act 
of  wrong  is  no  more  in  question  now,  after  having  been  barred  by 
the  statute,  than  it  would  have  been  if  damages  had  been  recovered  or 
settled  for  amicably;  nor  do  we  see  that  it  can  be  important  in  a  case 
like  the  present,  where  the  wrong  must  be  found  in  the  injurious  flow- 
ing, whether  there  was  or  was  not  a  wrong  originally.  If  there  was, 
it  stands  altogether  apart  from  the  wrong  now  sued  for,  with  an  in- 
terval between  them,  when  no  legal  wrong  could  have  been  complain- 
ed of. 

The  mere  fact  that  an  opening  was  made  by  the  defendant  between 
the  two  mines,  would  not  of  itself  have  been  a  trespass  unless  the  de- 
fendant invaded  the  plaintiff's  premises  in  making  it.  Each  party  had 
a  right  to  mine  on  its  own  side  to  the  boundary  (Wilson  v.  Waddell, 
L.  R.  2  App.  Cas.  95);  and  if  the  plaintiff  had  first  done  so,  the  de- 
fendant might  have  done  the  same  at  the  same  point,  and  in  that  way 
have  made  an  opening  rightfully.  The  difference  between  the  case 
supposed  and  this,  is  that  here  the  defendant  was  found  to  have  gone 
beyond  the  boundary  and  committed  a  trespass.  But  suppose  the  de- 
fendant had  then  made  compensation  for  the  trespass,  so  far  as  it  was 
then  damaging;  how  would  the  case  have  differed  from  the  present? 
The  opening  would  remain,  made  by  the  defendant,  through  which. 


Ch.  1)  ENTIRETY    OF    RECOVERY. 


285 


if  the  water  was  allowed  to  collect  in  his  mine,  it  must  eventually 
pass;   and  if  he  was  under  obligation  to  keep  it  within  the  bounds  of 
his  own  premises,  he  would  be  liable  for  allowing  it  to  pass;   other- 
wise not.    The  fact  that  compensation  was  not  actually  made  for  the 
breaking  away  of  the  plaintiff's  barrier  is  immaterial  when  the  stat- 
ute has  run,  as  has  been  already  explained.     *     *     * 
(The  only  wrongful  act  with  which  the  defendant  is  chargeable,  was 
committed  so  long  before  the  bringing  of  suit  that  action  for  it  was 
barred.    Had  suit  been  brought  in  due  time,  recovery  might  have  been 
had  for  all  damages  which  could  then  have  been  anticipated  as  the 
natural  and  probable  result  of  the  wrongful  act.     If  the  particular 
damages  which  have  been  suffered  could  not  then  have  been  anticipat- 
ed, itis  because  it  could  not  then  be  known  that  the  defendant  would 
cease  mining  operations  and  the  plaintiff  would  not.    There  could  be 
no  flowing  from  one  mine  into  the  other  while  both  were  worked; 
and  had  the  plaintiff  ceased  operations  and  the  defendant  continued 
to  work,  the  defendant  would  have  suft'ered  the  damage  instead  of  the 
plaintiff!     But  neither  party  was  under  obligation  to  keep  its  mine 
pumped  out  for  the  benefit  of  its  neighbor.     Either  was  at  liberty  to 
discontinue  its  operations  and  abandon  its  mine  whenever  its  interest 
should  seem  to  require  it.  And  had  the  plaintiff  brought  an  action  with- 
in two  years  from  the  time  of  trespass,  its  recovery  would  necessarily 
have  been  had  with  this  undoubted  right  of  abandonment  in  view.    But 
a  jury  could  not  have  awarded  damages  for  any  exercise  of  a  right, 
and  they  could  not,  therefore,  have  given  damages  for  a  possible  m- 
jury  to  flow  from  such  an  abandonment.    This  is  on  the  plain  prin- 
ciple that  the  mere  exercise  of  a  right  cannot  be  a  legal  wrong  to  an- 
other, and  if  damage  shall  happen,  it  is  damnum  absque  injuria.^ 

This  view  of  the  case  is  conclusive;    but  there  is  another  that  is 
equally  so.    The  wrong  to  the  plaintiff  consisted  in  breaking  downthe 
wall  which  had  been  left  by  it  in  its  operations.    If  any  damage  might 
possibly  result  from  this  which  was  not  then  so  far  probable  that  a 
jury  could  have  taken  it  into  account  in  awarding  damages,  the  plain- 
tiff was  not  without  redress.     It  would  have  been  entitled  in  a  suit 
then  brought  to  recover  the  cost  of  restoring  the  barrier  which  had 
been  taken  away;  and  if  it  had  done  so,  and  made  the  restoration,  the 
damage  now  complained  of  could  not  have  happened.    It  thus  api^cars 
that  complete  redress  could  have  been  had  in  a  suit  brought  at  that 
time;   and,  that  being  the  case,  the  plaintiff  is  not  entitled  to  recover 
now  for  an  injury  for  which  an  award  of  means  of  prevention  was 
within  the  right  of  action  which  was  suft'ered  to  become  barred.    The 
right  which  then  existed,  being  a  right  to  recover  for  all  the  injury 
which  had  then  been  suft'ered,  including  the  loss  of  the  dividing  bar- 
rier, it  would  not  have  been  competent  for  the  plaintiff,  had  suit  then 
been  brought,  to  leave  the  loss  of  the  barrier  out  of  account,  awaiting 
possible  special  damages  to  flow  therefrom  as  a  ground  for  a  new 


286  COMPENSATORY  DAMAGES.  (Part    f) 

suit.  The  wrong  which  had  then  been  committed  was  indivisible;  and 
the  bar  of  the  statute  must  be  as  broad  as  the  remedy  was  which  it 
extincfuishes.     *     *     * 


DARLEY  MAIN  COLLIERY  CO.  v.  MITCHELL. 

(House  of  Lords,   1886.     11  App.  Cas.    127.) 

Lord  Halsbury.^^  My  lords,  in  this  case  the  plaintiff,  the  owner 
of  land  upon  the  surface,  has  sued  the  lessees  of  certain  seams  of 
coal  below  and  adjacent  to  the  plaintiff's  land  for  having  disturbed 
the  plaintiff  in  the  enjoyment  of  his  property,  by  causing  it  to  sub- 
side. The  defendants,  before  and  up  to  the  year  1868,  have  worked 
— that  is  to  say,  excavated — the  seams  of  coal  of  which  they  were 
lessees.  Their  excavation  caused  a  subsidence  of  the  ground,  for 
which  they  acknowledged  their  liability,  and  made  satisfaction.  There 
were  other  subsidences  after  this,  and,  as  the  case  originally  came  be- 
fore your  lordships,  it  was  matter  of  inference  only  whether  these 
subsidences  were  or  were  not  in  some  way  connected  with,  if  not 
forming  part  of,  the  original  subsidence.  The  parties  have  now,  by 
an  admission  at  your  lordships'  bar,  placed  the  matter  beyond  doubt. 

It  has  been  agreed  that  the  owner  of  the  adjoining  land  worked  out 
his  coal  subsequently  to  1868;  that,  if  he  had  not  done  so,  there  would 
have  been  no  further  subsidence;  and  if  the  defendants'  coal  had  not 
been  taken  out,  or  if  sufficient  support  had  been  left,  the  working  of 
the  adjoining  owner  would  have  done  no  harm.  Under  these  circum- 
stances, the  question  is  whether  the  satisfaction  for  the  past  subsi- 
dence must  be  taken  to  have  been  equivalent  to  a  satisfaction  for  all 
succeeding  subsidences.  No  one  will  think  of  disputing  the  proposi- 
tion that  for  one  cause  of  action  you  must  recover  all  damages  inci- 
dent to  it  by  law  once  and  for  ever.  A  house  that  has  received  a  shock 
may  not  at  once  shew  all  the  damage  done  to  it,  but  it  is  damaged  none 
the  less  then  to  the  extent  that  it  is  damaged;  and  the  fact  that  the 
damage  only  manifests  itself  later  on,  by  stages,  does  not  alter  the 
fact  that  the  damage  is  there.  And  so  of  the  more  complex  mechan- 
ism of  the  human  frame ;  the  damage  is  done  in  a  railway  accident ; 
the  whole  machinery  is  injured,  though  it  may  escape  the  eye  or  even 
the  consciousness  of  the  sufferer  at  the  time ;  the  later  stages  of  suffer- 
ing are  but  the  manifestations  of  the  original  damage  done,  and  conse- 
quent upon  the  injury  originally  sustained. 

But  the  words  "cause  of  action"  are  somewhat  ambiguously  used 
in  reasoning  upon  this  subject.  What  the  plaintiff  has  a  right  to  com- 
plain of  in  a  court  of  law  in  this  case  is  the  damage  to  his  land,  and 
by  the  damage  I  mean  the  damage  which  had  in  fact  occurred;   and, 

»2  Parts  of  the  opinions  are  omitted. 


Ch.  1)  ENTIRETY    OF    RECOVERY.  287 

if  this  is  all  that  a  plaintiff  can  complain  of,  I  do  not  see  why  he  may 
not  recover  toties  quoties  fresh  damage  is  inflicted. 

Since  the  decision  of  this  house  in  Backhouse  v.  Bonomi,  9  H.  L. 
Cas.  503,  it  is  clear  that  no  action  would  lie  for  the  excavation.  It 
is  not  therefore  a  cause  of  action.  That  case  established  that  it  is  the 
damage  and  not  the  excavation,  which  is  the  cause  of  action.  I  can- 
not understand  why  every  new  subsidence,  although  proceeding  from 
the  same  original  act  or  omission  of  the  defendants,  is  not  a  new  cause 
of  action,  for  which  damages  may  be  recovered.  I  cannot  concur  in 
the  view  that  there  is  a  breach  of  duty  in  the  original  excavation. 

«        4:        4: 

I  think  the  decision  of  this  case  must  depend,  as  matter  of  logic, 
upon  the  decision  of  your  lordships'  house  in  Backhouse  v.  Bonomi, 
9  H.  L.  Cas.  503,  512;  and  I  do  not  know  that  it  is  a  very  legitimate 
inquiry,  when  a  principle  has  been  laid  down  by  a  tribunal  from  which 
there  is  no  appeal,  and  which  is  bound  by  its  own  decisions,  whether 
that  principle  is  upon  the  whole  advantageous  or  convenient;  but,  if 
such  considerations  were  permissible,  I  think  Cockburn,  C.  J.,  in  his 
judgment  in  Lamb  v.  Walker,  3  Q.  B.  Div.  389,  establishes  the  bal- 
ance of  convenience  to  be  on  the  side  of  the  law,  as  established  by 
Backhouse  v.  Bonomi,  9  H.  L.  Cas.  503,  512.  I  cannot  logically  dis- 
tinguish between  a  first  and  a  second  or  a  third  or  more  subsidences; 
and  after  Backhouse  v.  Bonomi,  9  H.  L.  Cas.  503,  512,  it  is  impossible 
to  say  that  it  was  wrong  in  any  sense  for  the  defendant  to  remove  the 
coal.  Cresswell,  J.,  has  said,  and  I  think  rightly,  that  he  might  re- 
move every  atom  of  the  mineral. 

The  wrong  consists,  and,  as  it  appears  to  me,  wholly  consists,  in 
causing  another  man  damage;  and  I  think  he  may  recover  for  that 
damage  as  and  when  it  occurs. 

For  these  reasons,  I  think  that  the  judgment  appealed  from  should 
be  affirmed,  with  costs. 

Lord  Bramwell.  *  *  *  It  is  a  rule  that  when  a  thing  directly 
wrongful  in  itself  is  done  to  a  man,  in  itself  a  cause  of  action,  he 
must,  if  he  sues  in  respect  of  it,  do  so  once  and  for  all.  As,  if  he  is 
beaten  or  wounded,  if  he  sues,  he  must  sue  for  all  his  damage — past, 
present,  and  future,  certain  and  contingent.  He  cannot  maintain  an 
action  for  a  broken  arm,  and  subsequently  for  a  broken  rib,  though 
he  did  not  know  of  it  when  he  commenced  his  first  action.  But,  if  he 
sustained  two  injuries  from  a  blow — one  to  his  person,  another  to  his 
property;  as,  for  instance,  damage  to  a  watch — there  is  no  doubt  that 
he  could  maintain  two  actions  in  respect  to  the  one  blow.  I  may  ap- 
ply the  test  r mentioned  in  the  argument.  If  he  became  bankrupt,  the 
right  in  respect  of  the  watch  would  vest  in  his  trustee ;  that  for  dam- 
age to  his  person  would  remain  in  him.  I  have  put  the  case  of  a  tres- 
pass. The  same  would  be  true  of  an  action  for  consequential  dam- 
ages.    A  man  slandered  or  libeled  by  words  actionable  in  themselves 


288  COMPENSATORY  DAMAGES.  (Part    5 

must  sue,  if  at  all,  for  all  his  damage  in  one  action.  Probably,  if  he 
sustained  special  damage,  as  that  he  lost  a  contract  through  being 
charged  with  theft,  he  might  maintain  one  action  for  the  actionable 
slander,  another  for  the  personal  loss — certainly  if  the  case  in  Siderfin 
is  right.    But  it  is  not  necessary  to  decide  this. 

I  now  come  to  the  case  of  where  the  wrong  is  not  actionable  in  it- 
self, is  only  an  injuria,  but  causes  a  damnum.  In  such  a  case  it  would 
seem  that  as  the  action  was  only  maintainable  in  respect  of  the  dam- 
age, or  not  maintainable  till  the  damage,  an  action  should  lie  every  time 
a  damage  accrued  from  the  wrongful  act.  For  example,  A.  says  to  B. 
that  C.  is  a  swindler.  B.  refuses  to  enter  into  a  contract  with  C.  C. 
has  a  cause  of  action  against  A.  D.,  who  was  present  and  heard  it, 
also  refuses  to  make  such  a  contract.  Surely,  another  action  would 
lie.  And  so  one  would  think  if  B.  subsequently  refuses  another  con- 
tract. Of  course,  one  can  see  that  frauds  might  be  practiced.  So 
they  may  in  any  state  of  law.  But  I  cannot  see  why  the  second  ac- 
tion would  not  be  maintainable  if  the  second  loss  was  traced  to  the 
speaking.  And  perhaps  one  might  apply  the  same  test.  Would  not 
the  first  right  of  action  pass  to  the  trustees  of  C.  if  he  became  bank- 
rupt? If  the  second  loss  was  after  the  bankrupt's  discharge,  it  would 
not. 

There  is  still  another  class  of  cases  to  be  considered,  viz.  those 
where  the  act  causing  damage  is  not  in  itself  wrongful.  No  easier 
case  can  be  taken  than  the  above  ground  case  of  an  excavation,  where- 
by an  adjoining  owner's  soil  is  let  down.  It  cannot  be  said  that  the 
act  of  excavation  is  unlawful.  A  contract  to  do  it  could  be  enforced. 
No  injunction  against  it  could  be  obtained  unless  injury  was  imminent 
and  certain.  What  would  be  the  rights  of  the  person  damaged  in  such 
a  case?  I  think  the  former  reasoning  would  apply.  If  there  was  an 
excavation  100  yards  long,  and  50  feet  of  the  neighbouring  soil  fell 
in,  the  right  of  action  would  be  in  respect  of  those  50  feet,  and  not 
only  in  respect  of  what  had  fallen  in,  but  what  would  in  future  fall 
in  along  the  50  feet.  But,  if  afterwards  the  other  50  feet  fell  in, 
there  would  be  a  fresh  cause  of  action.  Surely,  this  must  be  so.  If 
10  feet  at  one  end  fell  in,  and  afterwards  10  feet  at  the  other,  it  would 
be  impossible  to  say  that  there  would  not  be  two  causes  of  action.  If 
the  excavation  was  on  two  sides  of  a  square,  the  same  consequences. 
The  attorney-general  denied  this,  and  was  driven  to  do  so.  But  sup- 
pose A.  owned  the  adjoining  property  on  one  side,  and  B.  that  which 
was  at  right  angles  to  it;  there  must  then  be  two  causes  of  action. 

Now,  apply  this  reasoning  to  the  present  case.  There  are  by  the 
admission  of  the  parties  two  separate  and  distinct  damages  caused 
to  the  plaintiff  by  the  "acts" — including  in  that  word  omissions — of  the 
defendants.  One  a  removal  of  coal,  and  nonproviding  of  supports, 
which  caused  a  subsidence  in  1868.  A  cause  of  action  accrued  then. 
Another  cause  of  action  is  the  removal  of  coal,  including,  perhaps, 
the  coal  which  caused  the  first  subsidence,  but  doubtless  also  a  re- 


Uvr-^''-"'^  ^^ .......     - 

Ch.  1)  SINGLENESS    OF    RECOVERY.  2SU 

moval  of  coal  extending  to  a  greater  distance,  and  not  immediately 
under  the  plaintiff's  land,  and  the  nonproviding  against  the  conse- 
quences, which,  when  the  adjoining  owner  to  the  defendants  remov- 
ed his  coal,  as  he  lawfully  might  (though  I  think  that  immaterial), 
caused  a  creep  in  the  defendants'  land,  which  in  time  caused  the  fur- 
ther subsidence.  I  think  this  gives  a  second  cause  of  action.  I  think, 
therefore,  the  judgment  was  right. 

It  seems  to  me  not  to  matter  that  the  subsidence  was  of  the  same 
spot,  nor  that  the  immediate  cause  of  the  second  subsidence  was  the 
nonexistence  of  coal  underneath  that  spot.  Two  damages  have  been 
occasioned  to  the  plaintiff, — one,  directly  and  immediately  by  the  re- 
moval of  the  coal  under  his  surface ;  the  other,  by  that  and  removal 
of  other  coal,  and  consequent  creeping  and  further  subsidence.  The 
attorney  general,  as  I  have  said,  denied  that  there  could  be  two  causes 
of  action  if  two  different  parts  of  the  plaintiff's  land  subsided  at  two 
different  times.  But  surely  there  must  be.  Suppose  the  two  pieces 
belonged  to  different  owners,  as  I  have  suggested. 

Of  course,  one  can  see  the  danger  and  inconvenience  that  will  fol- 
low. This  damage  accrues  many  years  after  the  defendants'  act  or 
omission  which  has  caused  it.  If  my  reasoning  is  right,  many  years 
hence  there  might  be  a  further  action  from  some  further  subsidence. 
But  the  inconvenience  is  as  great  the  other  way;  for,  if  the  defendants 
are  right,  it  follows  that,  on  the  least  subsidence  happening,  a  cause 
of  action  accrues  once  and  for  all,  the  statute  of  limitations  begins  to 
run,  and  the  person  injured  must  bring  his  action,  and  claim  and  re- 
cover for  all  damage,  actual,  possible,  or  contingent,  for  all  time."' 


II.  Singleness  oi^  Recovery. 

(A)  In  General. 

WICHITA  &  W.  R.  CO.  V.  BEEBE  et  al. 

(Supreme  Court  of  Kansas,  ISSS.    39  Kan.  4G5,  18  Pac.  502.) 

Holt,  C.®*  This  action  was  brought  by  defendants  in  error  as 
plaintiffs,  in  Sedgwick  district  court,  to  recover  damages  to  lands 
they  had  rented,  by  an  overflow  of  water.  In  their  petition  they  aver 
that  in  the  spring  of  1885  they  were  cultivating  a  tract  of  40  acres  off 

03  Accord:  G.  L.  Mining  Co.  v.  Clague,  4  App.  C-as.  115  (1878) :  Ilamor  v. 
Knowles,  6  Hurl.  &  N.  454  (ISGl) ;  Nielvliu  v.  Williams,  10  Exch.  259  (1854). 

See,  also.  Smith  v.  City  of  Seattle,  18  Wash.  484,  51  Pac.  1057,  08  Am.  St. 
Rep.  910  (1898);  CJiureh  v.  Paterson  K.  Co.,  GO  N.  J.  Law,  218,  49  Atl.  1030,  55 
L.  R.  A.  81.  following  Backhouse  v.  B<Miomi,  9  II.  U  Cus.  503  (18(J1),  and 
Noonan  v.  Pardee,  20Ui  Pa.  474.  50  Atl.  255.  55  L.  R.  A.  410,  SO  Am.  St.  Rep 
722,  denying  it.     And  cf.  Smith  v.  Thaclierah,  L.  R.  1  C.  P.  504,  ante,  p.  12. 

»*  Part  of  the  opinion  is  omitted. 
Gilb.Dam.— 19 


290  COMPENSATORY  DAMAGES.  (Part    5 

the  south  side  of  the  S.  E.i/4  of  section  2G,  township  37  S.,  of  range 
1  W.,  Sedgwick  county,  and  had  fully  prepared  to  plant  corn  upon 
it;  that  the  said  defendant  railroad  company  had  then  recently  divert- 
ed the  water  of  a  stream  from  its  natural  watercourse  in  the  con- 
struction of  its  roadbed,  and  discharged  it  through  an  artificial  chan- 
nel: that  on  or  about  the  15th  of  May  of  said  year,  on  account  of  heavy 
rains,  a  great  quantity  of  water  was  discharged  through  this  newly 
made  channel  upon  the  land  in  question;  and  the  water,  overflowing 
and  remaining  upon  the  same  for  about  six  weeks,  prevented  the  plain- 
tiffs from  planting,  cultivating,  and  growing  corn  and  other  crops 
thereon,  and  by  reason  thereof  they  have  been  damaged  in  the  sum  of 
$500.  It  appears,  further,  that,  on  the  17th  of  August  following,  said 
plaintiffs  commenced  an  action  against  this  defendant  to  recover  dam- 
ages caused  by  the  water  flowing  through  the  same  channel  at  the 
same  time,  and  overflowing  60  acres  of  corn  already  planted.  This 
action  was  tried,  and  judgment  rendered  for  plaintiffs  for  $75.  The 
defense  urged,  and  properly  raised  and  supported  by  the  evidence, 
was  that  the  judgment  in  the  former  action  was  a  bar  to  this  one.  De- 
fendant brings  the  case  here  for  review.  It  appears  that  the  plaintiff 
had  rented  320  acres,  half  of  said  section  26,  and  that  the  40  acres 
unplanted,  for  which  damages  are  claimed  in  this  action,  was  a  part 
of  this  same  tract,  with  the  60  acres  which  had  been  planted,  and  for 
which  damages  had  been  claimed  and  recovered  heretofore.  The  de- 
fendant claims  that  the  judgment  obtained  in  the  former  action  pre- 
cluded the  plaintiff  from  setting  up  any  other  and  different  damages 
than  those  claimed  in  that  action,  occasioned  at  the  same  time. 

(We  believe  the  law  to  be  well  settled  that  no  party  is  permitted  to 
split  his  causes  of  action  into  different  suits.  If  he  does,  and  obtains 
judgment  upon  any  part,  such  judgment  is  a  complete  bar  to  a  re- 
covery upon  any  remaining  portion  thereof.)  The  splitting  up  of 
claims  is  not  permitted  in  the  case  of  contracts,  and  the  same  rule 
which  prevents  a  party  from  doing  so  applies  with  equal  force  to  ac- 
tions arising  in  tort,  and  the  same  act  cannot  be  the  foundation  for 
another  suit,  although  the  items  of  damages  may  be  different.  In  this 
action  the  act  complained  of  was  the  discharge  of  the  water  upon  the 
15th  day  of  May;  and  this  claim  for  damages  might  have  been  liti- 
gated in  the  first  action,  and  should  have  been  set  forth  in  the  peti- 
tion therein.  If  plaintiffs  neglected  to  do  so,  they  should  be  barred 
from  further  relief.  It  was  the  same  storm,  and  the  water  was  dis- 
charged, through  the  same  culvert,  upon  land  which  was  a  part  of  the 
same  tract  that  plaintiffs  had  rented.  "The  principle  is  settled  beyond 
dispute  that  a  judgment  concludes  the  right  of  parties  in  respect  to  the 
cause  of  action  stated  in  the  pleadings  in  which  it  is  rendered,  whether 
the  suit  embraces  the  whole  or  only  a  part  of  the  demand  constitut- 
ing the  cause  of  action.  It  results  from  this  principle,  and  the  rule 
is  fully  established,  that  an  entire  claim,  ensuing  either  upon  a  con- 
tract or  from  a  wrong,  cannot  be  divided,  and  made  the  subject  of 


^ 


Ch.  1)  SINGLENESS  OF  RECOVERY.  291 

several  suits;  and,  if  several  suits  be  brought  for  the  difrerent  parts 
of  the  same  claim,  *  *  *  judgment  upon  the  merits  in  either 
will  be  available  as  a  bar  in  the  other  suits.  *  *  *f  In  case  of  torts, 
each  trespass  or  conversion  or  fraud  gives  a  right  of  action,  and  but  ,a 
single  one,  however  numerous  the  items  of  wrong  or  damage  may  be.V 
1  Herm.  Estop.  §  77.  If  the  rule  were  otherwise,  the  tract  might  have 
been  divi-^  d  up  into  5,  10,  or  15  acre  tracts,  and  there  might  have  been 
a  series  of  vexatious  law  suits.  "It  is  for  the  public  good  that  there 
be  an  end  to  litigation."     This  view  is  well  supported  by  authority. 


GOSLIN  V.  CORRY. 
(Court  of  Comiuou  Pleas,  1844.     7  Man.  &  G.  342.) 

Action  in  case  for  libel  by  reason  of  advertisements  of  a  reward  for 
the  apprehension  of  the  plaintiff,  the  same  charging  him  with  fraud. 
The  libels  were  published  on  March  31st  and  April  5th.  The  action 
was  begun  on  April  19th.  Defendant's  counsel  consented  to  the  ad- 
mission of  evidence  as  to  two  arrests  of  the  plaintiff,  made  on  April 
2oth  and  May  13th. 

The  Lord  Chief  Justice,  in  leaving  the  case  to  the  jury,  told  them, 
that  the  two  arrests,  being  subsequent  to  the  commencement  of  the 

95  Prospective  damas:es  that  are  certain  to  ocair  should  he  assessed  in  the 
first  action.  Fetter  v.  Beale,  1  Ld.  Ravm.  330  (1097);  Richardson  v.  Mellish. 
2  Bins.  229  (1824).  And  see.  also.  Child  v.  Stenninsj,  11  Ch.  Div.  82  (1870); 
Howell  V.  Richards.  11  East.  033  (1809) ;  Bowes  v.  Law.  L.  R.  9  Eq.  G.3G  (1870). 
New  actions  may  be  brouj2:ht  as  often  as  new  injuries  and  wronirs  are  re- 
peated, not  as  often  as  new  damages  accrue.  Hanihloton  v.  Vecre,  2  Wm. 
Sannd.  171  (1750) ;    Hodsoll  v.  Stallehrass.  11  Adol.  &  E.  301  (1840). 

Filer  v.  New  York  Cent.  R.  Co..  49  N.  Y.  42  (1872),  was  an  action  for 
damages  for  personal  injuries  sustained  hy  plaintiff's  wife  while  ali.shtins 
from  defendant's  train.  A  physician  was  allowed  hy  the  lower  court  to  state 
what  the  probability  was  of  a  return  of  an  inflammation  of  the  muscles  of 
the  female  plaintiff's  back  and  hip,  which  was  consequent  upon  the  injiiry. 
The  defendant  assigns  the  admission  of  this  testimony  as  error.  Inter  alia, 
Allen,  J.,  said: 

"Successive  actions  cannot  be  brought  by  the  plaintiff  for  the  recovery  of 
damages,  as  they  may  accrue  from  time  to  time,  resulting  from  the  injury 
complained  of,  as  would  be  the  case  for  a  continuous  wrong  or  a  continued 
trespass.  The  action  is  for  a  single  wrong,  the  injury  resulting  from  a  suigle 
act,  and  the  plaintiff  was  entitled  to  recover  not  only  the  damages  which 
had  been  actually  sustained  up  to  the  time  of  the  trial,  but  also  compensation 
for  future  damages;  that  is,  compensation  for  all  the  damages  resulting  from 
the  injury,  whether  present  or  prospective.  The  limit  in  respect  to  future 
damages  is  that  they  must  be  such  as  it  is  reasonably  certain  will  inevitably 
and  necessarily  result  from  the  Injury.  To  exclude  damages  of  that  charac- 
ter, in  actions  for  injuries  to  the  person,  would  necessarily,  in  many  cases, 
deprive  the  injured  party  of  the  greater  part  of  the  compensation  to  which  he 
is  entitled.  Clirtis  v.  Railroad  Co.,  18  N.  Y.  .")34,  7')  Am.  Dec.  2r.8;  Drew  v. 
Railroad  Co.,  26  N.  Y.  49.  Any  evidence  therefore  tending  to  show  the  char- 
acter and  extent  of  the  injury  and  its  probable  results,  as  well  as  the  proba- 
bility of  a  return  of  the  disease  indticed  by  the  Injury,  in  the  ordiu.iry  course 
of  nature,  and  without  any  extrinsic  superinducing  cause,  was  C(>nii)etent  to 
enable  the  jury  to  determine  the  compensation  to  which  the  plaintiff  was  en- 
titled." 


292  COMPENSATORY  DAMAGES.  (Part    5 

action,  were  not,  in  strictness,  evidence  in  the  cause,  but  that  the  tend- 
ency of  the  advertisement  was  to  cause  the  plaintiff  to  be  arrested  up- 
on the  charge  of  fraud  therein  made,  and  that  the  evidence  of  such 
arrests  was  received  with  the  consent  of  the  defendant's  counsel:  his 
lordship  directed  them  to  take  all  the  circumstances  into  their  con- 
sideration, and,  if  they  were  satisfied  that  the  defendant  was  the  au- 
thor of  the  publication,  to  give  the  plaintiff  such  temperate  and  rea- 
sonable damages  as  in  their  judgment  he  was  entitled  to  upon  the  facts 
proved. 

The  jury  having  returned  a  verdict  for  the  plaintiff,  damages  £50, 

Shee,  Serjt.,  now  moved  for  a  new  trial,  on  the  ground  of  misdi- 
rection."® 

Erskine,  J.  It  was  open  to  the  defendant's  counsel  to  take  one  of 
two  courses,  either  to  agree  that  the  jury  should  give  damages  for  the 
whole  injury,  whether  sustained  before  or  after  the  bringing  of  the 
action — or  to  insist  that  all  which  occurred  subsequently  to  the  com- 
mencement of  the  action  should  be  excluded  from  the  consideration 
of  the  jury.  The  defendant's  counsel  thought  proper  to  adopt  the  for- 
mer course.  It  appears  to  me  that,  if  the  Lord  Chief  Justice  had  told 
the  jury  they  were  at  liberty  to  give  damages  for  the  arrests,  that 
would  have  been  a  misdirection.  But  there  does  not  seem  to  have  been 
any  such  misdirection  in  the  case.  On  the  contrary,  the  jury  were 
cautioned  that  the  plaintiff  was  not  entitled  to  damages  in  respect  of 
such  subsequent  arrests :  but  that,  inasmuch  as  the  evidence  had  been 
admitted  with  the  consent  of  the  defendant's  counsel,  it  could  not  be 
altogether  excluded.  Taken  in  connection  with  the  rest  of  the  sum- 
ming up,  that  amounts  to  no  more  than  this,  that  the  jury  were  to 
give  the  plaintiff  such  measure  of  damages  as  they  thought  him  enti- 
tled to  for  the  publication  of  the  libel,  and  for  the  mental  suft'ering 
arising  from  the  apprehension  of  the  consequences  of  the  publication; 
merely  treating  the  fact  of  his  having  been  afterwards  arrested  as 
showing  that  such  apprehension  was  just. 

TiNDAL,  C.  J.,  and  ColTman  and  Cresswell,  JJ.,  delivered  concur- 
ring opinions. 


(B)  Continuing  Torts, 

KANSAS  PAC.  RY.  v.  MIHLMAN. 

(Supreme  Court  of  Kansas,  1876.     17  Kan.  224.) 

Brewer,  J.^  Mihlman  was  the  owner  of  a  tract  of  land  in  Riley 
county.  In  December,  1866,  he  deeded  the  right-of-way  through  said 
land  to  the  railway  company,  plaintiff  in  error,  for  its  railroad.  Prior 
to  1868  the  road  was  constructed  over  this  right-of-way.     It  is  not 

96  The  statement  of  facts  has  been  rewritten. 
1  Part  of  the  opinion  is  omitted. 


M^-^-^.^^  .mXH 


y  r  ''•  *"" 

Ch.  1)  SINGLENESS    OF    RECOVERY.  293 


claimed  that  the  road  was  not  built  on  the  tract  deeded,  nor  that  it 
was  unskillfully  built.  The  road  crossed  at  right  angles  a  ravine 
which  seems  to  have  drained  quite  an  extent  of  territory,  and  through 
which  ran  after  a  heavy  rain  a  large  volume  of  surface-water.  It 
does  not  appear  to  have  been  technically  a  watercourse,  or  that  any- 
thing but  surface-water  ran  through  it.  At  or  near  this  ravine  the 
company  built  two  culverts.  Leading  to  and  from  these  culverts,  it, 
according  to  Mihlman's  testimony,  dug  two  or  three  ditches,  partly 
on  the  right-of-way  and  partly  on  jMihlman's  land.  In  1872  and  1873, 
from  these  ditches,  or  in  consequence  of  the  culverts  being  unable  to 
carry  oflf  all  the  surface-water,  the  land  of  Mihlman  was  flooded, 
and  his  crops  destroyed ;  and  for  this  damage  he  brought  this  action. 
It  does  not  appear  that  the  company  entered  upon  Mihlman's  land, 
or  did  any  work  thereon,  at  any  time  within  five  years  prior  lO  the 
commencement  of  this  action.     *     *     * 

The  first  matter  to  which  our  attention  is  called,  and  which  we  shall 
notice,  is  that  of"  the  statute  of  limitations.  Actions  of  trespass  upon 
real  property  are  barred  in  two  years.  Gen.  St.  633,  §  18,  cl.  3.  If 
the  cause  of  action  dates  from  the  time  the  defendant  entered  upon 
the  plaintifif's  land  and  dug  the  ditches,  and  was  simply  for  the  tres- 
pass, it  was  barred;  if  from  the  time  the  injury  to  ]\Iihlman's  crops 
occurred,  it  would  probably  not  be.  So  far  as  the  company  had  acted, 
its  action  was  finished  when  it  had  dug  the  ditches.  (We  are  now  con- 
sidering the  question  with  reference  solely  to  what  it  did  off  its  own 
land,  and  upon  that  of  Mihlman.)  It  had  invaded  Mihlman's  rights; 
it  had  committed  a  trespass  on  his  lands.  It  was  then  responsible  in 
an  action  for  the  injury  it  had  done  by  that  trespass.  Such  action 
might  have  been  brought  immediately,  and  in  such  action  could  have 
been  recovered  all  damages  done  to  Mihlman  by  the  trespass,  and 
which  might  have  included  the  cost  of  restoring  the  ground  to  the 
condition  it  was  before  the  digging  of  the  ditches.  What  new  act  has 
the  company  since  done?  What  wrong  has  it  done  to  Mihlman's 
property?  Nothing.  Its  hands  have  been  still.  It  has  made  no  new 
invasion  of  his  rights.  Suppose  an  action  had  been  brought,  and  dam- 
ages recovered,  for  the  trespass  immediately  after  it  occurred:  what 
new  act  of  the  company  could  now  be  alleged  as  the  basis  of  recov- 
ery? True,  the  trespass  has  now  resulted  in  greater  loss  than  was 
then  foreseen  or  estimated  in  assessment  of  damages;  but  an  in- 
crease in  the  damages  resulting  adds  no  new  cause  of  action.  A. 
commits  an  assault  and  battery  on  B.  Action  is  brought,  and  damages 
recovered.  That  ends  the  matter.  And  though  B.'s  sufferings  are 
prolonged,  and  his  injuries  prove  to  be  permanent,  and  of  a  far  more 
serious  character  than  was  thought  at  the  time  of  the  recovery  of 
damages,  there  can  be  no  new  action,  and  no  further  recovery.  Fet- 
ter V.  Beale,  1  Salk.  11.  "We  think  this  action  is  for  an  injury  to  a 
right;  and  consequently  there  was  a  complete  cause  of  action  when 
the  wrong  was  done,  and  not  a  new  cause  of  action  when  damage 


294  COMPENSATORY  DAMAGES.  (Part    5 

was  sustained  by  reason  of  the  original  wrong."  Baron  Parke,  in 
Nicklin  v.  Williams,  10  Exch.  259.  See,  also,  Northrup  v.  Hill,  57 
N.  Y.  351,  15  Am.  Rep.  501.  So,  for  the  trespass,  the  cause  of  ac- 
tion is  complete  at  the  time,  and  an  increase  in  the  resulting  damages 
gives  no  new  cause  of  action.  There  are  cases,  it  is  true,  in  which  the 
cause  of  action  is  based  upon  the  actual  occurrence  of  damage,  and 
dates  therefrom,  and  not  upon  or  from  the  prior  act  which  resulted  in 
the  damage ;  but  these  are  all  cases  in  which  the  prior  act  is  itself 
lawful,  and  furnishes  no  cause  of  action,  or  where  it  is  considered  as 
a  continuing  act ;  as,  where  one  excavates  on  his  own  land,  and  there- 
by withdraws  the  lateral  support  to  his  neighbor's  soil  and  buildings, 
the  act  is  itself  lawful,  and  only  becomes  the  basis  of  a  cause  of  action 
for  damages  when  it  actually  results  in  injury;  and  the  cause  of  ac- 
tion dates,  not  from  the  time  of  the  excavation,  but  from  the  time  of 
the  subsidence.  Bonomi  v.  Backhouse,  96  E.  C.  L.  653.  Here  no 
trespass  is  committed.  The  party  is  simply  using  his  own  property, 
and  using  it  lawfully;  and  it  is  only  when  he  conflicts  with  the  rule 
"Sic  utere  tuo  ut  alienum  non  Ijedas,"  that  his  neighbor  has  any  cause 
of  complaint.  If  after  the  excavation  he  builds  on  his  own  ground  a 
wall  which  continues  the  support  of  his  neighbor's  soil  and  buildings, 
that  neighbor  has  no  action.  The  excavation  therefore  is  not  the 
foundation  of  the  action,  but  the  damage  consequential  upon  the  ex- 
cavation;   and  no  cause  of  action  exists  until  the   damage  occurs. 

V^Counsel  here  would  make  the  gist  of  the  action  the  continuance 
of  the  ditch;  *  *  *  but  the  fact  is,  the  wrong  was  done  when  the 
ditch  was  dug,  and  an  omission  to  re-enter  and  fill  up  the  ditch  was  a 
breach  of  no  legal  duty.  There  are  cases  in  which  the  original  act 
is  considered  as  a  continuing  act,  and  daily  giving  rise  to  a  new  cause 
of  action.  Where  one  creates  a  nuisance,  and  permits  it  to  remain, 
so  long  as  it  remains  it  is  treated  as  a  continuing  wrong,  and  giving 
rise,  over  and  over  again,  to  causes  of  action.  But  the  principle  upon 
which  one  is  charged  as  a  continuing  wrongdoer  is,  that  he  has  a 
legal  right,  and  is  under  a  legal  duty,  to  terminate  the  cause  of  the  in- 
jury. As  to  anything  upon  his  own  land,  a  party  has  a  right  to  con- 
trol and  remove  it,  and  if  it  is  so  much  of  an  injury  to  his  neighbor's 
rights  as  to  amount  to  a  nuisance,  is  under  a  legal  obligation  to  do  so ; 
but  as  to  that  upon  his  neighbor's  land,  he  has  no  such  right,  and  is 
under  no  such  duty.  Hence  the  distinction  between  nuisance  and 
trespass.     *     *     * 

It  is  true,  the  books  speak  of  such  a  thing  as  a  continuing  trespass. 
In  1  Add.  Torts,  332,  it  is  said,  that  "If  a  man  throws  a  heap  of  stones, 
or  builds  a  wall,  or  plants  posts  or  rails  on  his  neighbor's  land,  and 
there  leaves  them,  an  action  will  lie  against  him  for  the  trespass,  and 
the  right  to  sue  will  continue  from  day  to  day  until  the  incumbrance  is 
removed."  And  in  the  case  of  Holmes  v.  Wilson,  37  E.  C.  L.  273,  10 
Adol.  &  E.  503,  it  appeared  thst  ths  trustees  of  a  turnpike  to  support 


Ch.  1)  SINGLENESS  OF  RECOVERY.  295 

it  built  buttresses  on  the  plaintiff's  land.     He  brought  an  action,  and 
recovered  for  the  trespass.    He  then  notified  them  to  remove  the  but- 
tresses.    Failing  to  do  so,  he  sued  again,  and  it  was  held  that  the 
action  would  lie.     It  seems  to  us  very  doubtful  whether  this  ruling 
can  be  sustained  upon  principle.     As  suggested  by  the  reporter,  sup- 
pose plaintiff  had  recovered  as  a  part  of  his  damages  in  the  first  ac- 
tion, as  he  properly  might,  the  expense  of  removing  these  buttresses, 
and  this  fact  had  appeared  in  the  second  suit :    could  the  action  have 
been  maintained?    And  what  difference,  we  ask,  does  it  make,  wheth- 
er he  did  actually  recover  for  such  expense?    It  was  a  proper  matter 
of  damages;    it  was  a  part  of  the  amount  necessary  to  place  the  land 
as  it  was  before  the  trespass;  he  was  entitled  to  recover  it,  if  he  prov- 
ed it;  and  if  he  failed  to  prove  it,  or  if  after  proving  it  the  court  re- 
fused to  allow  it,  neither  the  failure  nor  the  error  laid  the  foundation 
for  a  second  action.    And  what  right  does  the  first  trespass  give  the 
trespasser  to  re-enter  and  commit  a  second  trespass?     True,  in  this 
case,  the  plaintiff  had  requested  the  trustees  to  remove  the  buttresses, 
and  that  might  be  considered  a  license  to  enter,  and  a  waiver  of  the 
trespass.     But  where  there  is  no  such  request,  as  in  the  case  before 
us,  how  is  it?  If  the  railway  company  had  entered  to  fill  up  the  ditches, 
could  not  Mihlman  have  maintained  his  action  for  that  as  a  trespass? 
Was  he  not  at  liberty  to  appropriate  the  benefit  of  the  company's  work 
in  digging  the  ditches,  and  prevent  any  person  from  interfering  there- 
with, and  recover  damages  from  any  one  that  did  interfere  ?    It  seems 
so  to  us,  unquestionably.     And  it  seems  that  the  rule  would  be  the 
same  in  case  of  such  a  trespass  as  suggesteed  in  Addison,  of  the 
building  of  a  wall,  or  the  heaping  up  of  a  pile  of  stones.     Hence  we 
doubt  the  doctrine  as  stated  by  him,  and  as  decided  in  Holmes  v.  Wil- 
son,   At  any  rate,  we  do  not  think  it  can  be  extended  beyond  the  char- 
acter of  trespasses  there  named,  that  is,  those  in  which  something  is 
carried  to  and  placed  upon  the  land.    Take  this  illustration :    A.  tres- 
passes upon  B.'s  land,  and  digs  a  well.    And  that  is  a  trespass  very  like 
that  of  digging  a  ditch.    A.  never  enters  upon  the  land  again.     The 
well  is  never  filled  up,  but  is  permitted  to  remain.     Twenty  years 
thereafter,  in  a  wet  season,  the  water  from  the  well  soaks  through  the 
soil  into  a  cellar,  floods  it,  and  causes  damage.    Is  A.  responsible  for 
the  damage?   or  does  the  statute  bar  an  action?    Was  the  digging  of 
the  well«a  single  act,  and  a  completed  wrong?    or  does  its  existence 
make  A.  a  continuous  trespasser,  and  liable  for  every  recurring  dam- 
age?   ^ut  without  pursuing  the  discussion  further,  we  hold  that  in 
digging  the  ditches  on  Mihlman's  land  the  company  was  a  trespasser; 
that  the  cause  of  action  for  that  wrong  was  then  complete,  and  then 
commenced  to  run;    that  the  failure  to  enter  and  fill  up  the  ditches, 
did  not  render  the  company  guilty  of  continuing  a  nuisance,  nor  make 
it  in  any  legal  sense  a  continuous  wrongdoer,  and  that  therefore,  as 
to  any  injury  resulting  tl^erefrom,  as  shown  in  the  record,  the  statute 
of  limitations  was  a  bar.     *     *     * 


-^-vir***i 


^.ir\ 


'-K^^   296  COMPENSATORY  DAMAGES.  (Part   5 

^  STODGHILL  v.  CHICAGO,  B.  &  Q.  R.  Co. 

(Supreme  Court  of  Iowa,  ISSO.     53  Iowa,  341,  5  N.  W.  495.) 

Christopher  Stodghill  was  the  owner  of  a  farm  of  some  480  acres 
in  Wapello  county.  Part  of  said  farm  consisted  of  a  tract  of  29  acres 
of  creek  or  pasture  land.  The  defendant's  right  of  way  for  its  rail- 
road was  located  along  the  north  line  of  said  tract.  The  natural  chan- 
nel of  North  Avery  creek  ran  across  the  right  of  way  upon  said  tract, 
meandered  through  it,  and  recrossed  the  north  line  of  the  land  and  the 
right  of  way.  When  the  railroad  was  constructed,  bridges  were  built 
across  the  creek  which  spanned  the  channel  and  did  not  obstruct  the 
passage  of  the  water  in  the  stream,  nor  divert  it  from  where  it  was 
wont  to  flow.  In  187-i  the  defendants  cut  a  channel  on  the  north  side 
of  their  right  of  way  and  filled  in  the  bridge  where  the  stream  en- 
tered plaintiff's  land  with  earth,  which  diverted  the  stream  into  the 
new  channel  entirely,  "except  as  the  water  backed  through  a  culvert 
at  a  point  where  the  water  recrosses  the  right  of  way ;  the  said  bridge 
at  the  last  named  point  having  been  previously  removed,  a  culvert 
there  constructed,  and  the  stream  filled  in  at  this  point,  except  the 
culvert  aforesaid." 

Christopher  Stodghill  commenced  an  action  against  the  defendant 
for  damages  to  his  land  by  reason  of  the  diversion  of  the  stream.  He 
recovered  a  verdict  and  judgment  for  one  dollar  and  costs.  The  cause 
was  affirmed  upon  appeal  to  this  court.  See  Stodghill  v.  Railroad  Co., 
43  Iowa,  26,  22  Am.  Rep.  210.  Said  Stodghill  died  in  the  year  1876, 
and  by  his  last  will  and  testament,  which  was  duly  admitted  to  pro- 
bate, he  devised  the  said  29  acres,  with  other  of  his  lands  to  the  plain- 
tiff. This  action  was  commenced  in  February,  1877,  to  recover  dam- 
ages for  continuing  to  divert  the  water  from  the  natural  channel  of 
said  creek,  and  for  a  judgment,  directing  the  abatement  and  removal 
of  the  embankments  in  the  original  channel.  There  was  a  trial  by  the 
court,  without  the  intervention  of  a  jury,  and  a  judgment  was  render- 
ed for  plaintiff  for  one  dollar  actual  damages,  and  $75  exemplary 
damages,  and  an  order  was  made  requiring  the  defendant  to  abate  and 
remove  said  obstructions  from  the  natural  channel  of  the  creek.  De- 
fendant appeals. 

RoTHRocK,  J.^  1.  When  the  earth  was  deposited  in  the* channel 
of  the  creek,  and  raised  to  a  sufficient  height  to  cover  over  the  bridge, 
and  make  a  solid  embankment  upon  which  to  lay  the  railroad  track,  the 
water  in  the  creek  was  at  once  turned  into  the  new  channel.  The 
principal  question  in  the  case  is  whether  the  judgment  for  damages, 
in  favor  of  Christopher  Stodghill,  was  a  full  adjudication  for  all  in- 
juries to  the  land,  not  only  up  to  the  commencement  of  that  suit,  but 
for  all  that  might  thereafter  arise. 

2  Part  of  the  opinion  is  omitted. 


Ch.  1)  SINGLENESS  OF  RECOVERY.  297 

In  Powers  v.  City  of  Council  Bluffs,  45  Iowa,  652,  24  Am.  Rep.  792, 
the  question  being  as  to  what  is  a  permanent  nuisance,  it  was  held  that 
where  it  was  of  such  a  character  that  its  continuance  is  necessarily 
an  injury,  and  that  when  it  is  of  a  permanent  character,  that  will  con- 
tinue without  change  from  any  cause  but  human  labor,  the  damage  is 
original,  and  may  be  at  once  fully  estimated  and  compensated;  that 
successive  actions  will  not  lie,  and  that  the  statute  of  limitations  com- 
mences to  run  from  the  time  of  the  commencement  of  the  injury  to 
the  property.  That  was  a  cause  where  the  plaintiff  sought  to  recover 
damages  against  the  city  for  diverting  the  natural  channel  of  a  stream 
called  Indian  creek  by  excavating  a  ditch  in  a  street  in  such  a  manner 
that  it  widened  and  deepened,  by  the  action  of  the  water,  so  as  to  in- 
jure plaintiff's  lot  abutting  upon  said  street.  The  same  rule  was  rec- 
ognized in  Town  of  Troy  v.  Cheshire  R.  Co.,  3  Fost.  (N.  H.)  83,  55 
Am.  Dec.  177.  In  that  case  the  defendant  constructed  the  embank- 
ment of  its  railroad  upon  a  part  of  a  highway.  The  action  was  by  the 
town  to  recover  damages.  The  plaintiff  claimed  that  it  was  entitled 
to  recover  for  the  entire  damages  for  the  permanent  injury.  The 
court  said:  "The  railroad  is,  in  its  nature,  design  and  use,  a  perma- 
nent structure,  which  cannot  be  assumed  to  be  liable  to  change.  The 
appropriation  of  the  roadway  and  materials  to  the  use  of  the  railroad 
is  therefore  a  permanent  diversion  of  that  property  to  that  new  use, 
and  a  permanent  dispossession  of  the  town  of  it  as  the  place  on  which 
to  maintain  a  highway.  The  injury  done  to  the  town  is,  then,  a  per- 
manent injury,  at  once  done  by  the  construction  of  the  railroad,  which 
is  dependent  upon  no  contingency  of  which  the  law  can  take  notice, 
and  for  the  injury  thus  done  to  them  they  are  entitled  to  recover  at 
once  their  reasonable  damages." 

The  case  at  bar  is  a  much  stronger  illustration  of  what  is  a  per- 
manent nuisance  or  trespass,  for  which  damages,  past,  present  and 
prospective,  may  be  recovered,  than  Powers  v.  City  of  Council  Bluffs. 
In  this  case  the  damages,  to  the  whole  extent,  were  at  once  apparent. 
The  water  was  diverted  from  the  natural  channel  as  soon  as  the  em- 
bankment was  raised  to  a  sufficient  height  to  turn  the  current  into 
the  new  channel.  The  injury  to  the  land  was  then  as  susceptible  of  es- 
timation as  it  ever  afterwards  could  be,  and  without  calculating  any 
future  contingencies.  In  the  other  case,  when  the  water  commenced 
to  flow  in  the  new  channel,  the  plaintiff's  lots  were  not  injured.  It 
required  time  to  wash  away  the  banks  and  work  backward  before  the 
injury  commenced.  It  is  not  necessary  to  dwell  upon  this  question. 
The  rule  established  in  Powers  v.  City  of  Council  Bluffs,  supra,  is 
decisive  of  the  case.  See,  also,  Railroad  Co.  v.  Maher,  91  111.  312. 
Counsel  for  appellees  contend  that  the  railroad  embankment  is  not 
permanent,  because  it  is  liable  to  be  washed  out  by  freshets  in  the 
stream,  and  cannot  stand  without  being  repaired. 

There  is  no  evidence  in  this  record  tending  to  show  that  the  em- 
bankment is  insufficient  to  accomplish  the  purpose  for  which  it  was 


298  COMPENSATORY  DAMAGES.  (Part    5 

erected;  that  is,  to  make  a  solid  railroad  track  and  divert  the  water 
into  the  new  channel.  One  witness  testified  that  it  is  from  16  to  18 
feet  high.  We  will  not  presume  that  defendant  was  guilty  of  such 
a  want  of  engineering  skill  as  not  to  raise  its  embankments  so  that 
they  will  not  be  affected  by  high  water.  It  seems  to  us  that  a  railroad 
embankment  of  proper  width,  and  raised  to  the  proper  height,  is  about 
as  permanent  as  anything  that  human  hands  can  make.  Before  leav- 
ing this  branch  of  the  case,  it  is  proper  to  say  that  the  acts  complain- 
ed of  were  done  within  the  limit  of  the  defendant's  right  of  way, 
and  the  injury,  if  any,  to  the  plaintiff's  land  was  consequential.  The 
defendant  did  not  enter  upon  plaintiff's  land  to  take  a  right  of  way 
for  its  railroad,  and  Christopher  Stodghill  did  not  bring  his  action  to 
recover  upon  that  ground.  As  we  have  a  statute  providing  for  pro- 
ceedings to  condemn  the  land  necessary  to  be  taken  for  right  of  way 
for  railroad  purposes,  it  may  be  that  the  mode  of  ascertaining  the 
damages  prescribed  by  the  statute  must  be  pursued.  See  Daniels  v. 
Railroad  Co.,  3o  Iowa,  129,  14  Am.  Rep.  490.  That  question  is  not 
in  this  case,  and  we  only  refer  to  it  lest  we  may  be  misunderstood. 

2.  Christopher  Stodghill,  in  his  petition  in  the  former  action,  aver- 
red that  the  diversion  of  the  stream  from  its  natural  course  across 
said  land  perpetually  deprived  him  from  the  use  thereof,  to  his  great 
damage  in  the  prosecution  of  his  business,  and  in  the  depreciation  in 
value  of  his  said  farm  and  pasture  lands,  and  he  claimed  damages  in 
the  sum  of  $499.  The  court  instructed  the  jury  in  that  case  that  they 
were  not  to  consider  the  question  in  regard  to  any  permanent  damage 
to  the  land,  for  the  reason  that  plaintiff'  had  the  right  to  institute  other 
suits  to  recover  damages  sustained  after  the  mmmencement  of  the 
action. 

But  the  plaintiff  claimed  damages  generally,  and  by  his  pleading 
he  and  those  holding  under  him  must  be  bound.  Indeed,  we  do  not 
understand  counsel  for  appellee  to  contend  otherwise.  ( The  damages 
being  entire,  and  susceptible  of  immediate  recovery,  the  plaintiff  could 
not  divide  his  claim  and  maintain  successive  actions."^  The  erroneous 
instructions  of  the  court  to  the  jury  did  not  affect  the  question.  It 
was  the  duty  of  the  plaintiff  to  have  excepted  and  appealed.  "An  ad- 
judication is  final  and  conclusive,  not  only  as  to  the  matter  actually  de- 
termined, but  as  to  every  other  matter  which  the  parties  might  have 
litigated  and  have  had  decided,  as  incident  to  or  essentially  connected 
with  the  subject-matter  of  litigation."     *     *     ♦ 

Reversed. 


Ch.  1)  SINGLENESS  OF  RECOVERY.  299 


JOSEPH   SCHLITZ   BREWING  CO.  v.   COMPTON. 

(Supreme  Court  of  Illinois,  1892.     142  111,  511,  32  N.  E.  093,  18  L.  R.  A.  390. 

34  Am.  St.  Rep.  92.) 

In  April,  1885,  defendant  erected  a  building  on  the  lot  adjacent  to 
plaintiff's  dwelling,  with  a  roof  slanting  toward  plaintiff's  property, . 
from  which,  in  case  of  rain,  water  flowed  against  plaintiff's  wall  and 
into  her  cellar;   the  eave  trough  being  so  far  below  the  eaves  that  the 
water  ran  over  it.    This  action  for  damages  was  begun  April  17,  1890. 

Magruder,  J.^  Proof  was  introduced  of  damage  done  to  plaintiff's 
property  after  the  commencement  of  the  suit  by  reason  of  rain  storms 
then  occurring.  The  defendant  asked,  and  the  court  refused  to  give, 
the  following  instruction:  "The  court  instructs  the  jury  that  the  suit 
now  being  tried  was  commenced  in  the  month  of  April,  1890,  and  that 
they  are  not  to  take  into  consideration  the  question  as  to  whether  or 
not  any  damage  has  accrued  to  plaintiff's  property  since  the  com- 
mencement of  this  suit."  The  question  presented  is  whether  plaintiff 
was  entitled  to  recover  only  such  damages  as  accrued  before  and  up 
to  the  beginning  of  her  suit,  leaving  subsequent  damages  to  be  sued 
for  in  subsequent  suits,  or  whether  she  was  entitled  to  estimate  and 
recover  in  one  action  all  damages  resulting  both  before  and  after  the 
commencement  of  this  suit./  The  rule  originally  obtaining  at  com- 
mon law  was,  that  in  personal  actions  damages  could  be  recovered 
only  up  to  the  time  of  the  commencement  of  the  action.  3  Com.  Dig. 
tit.  "Damages,"  D.  The  rule  subsequently  prevailing  in  such  actions 
is  that  damages  accruing  after  the  commencement  of  the  suit  may  be 
recovered,  if  they  are  the  natural  and  necessary  result  of  the  act  com- 
plained of,  and  where  they  do  not  themselves  constitute  a  new  cause 
of  action.  'Wood's  Mayne,  Dam.  §  103;  Birchard  v.  Booth,  4  Wis. 
67;  Slater  V.  Rink,  18  111.  527;  Fetter  v.  Beale,  1  Salk.  11;  Howell 
v.  Goodrich,  69  111.  556.  /In  actions  of  trespass  to  the  realty,  it  is  said 
that  damages  may  be  recovered  up  to  the  time  of  the  verdict)  (Com. 
Dig.  363,  tit.  "Damages,"  D);  and  the  reason  why,  in  such  cases,  all 
the  damages  may  be  recovered  in  a  single  action,  is  that  the  trespass 
is  the  cause  of  action,  and  the  injury  resulting  is  merely  the  measure 
of  damages.  5  Am.  &  Eng.  Enc.  Law,  p.  16,  case  cited  in  note  2. 
/l3ut  in  the  case  of  nuisances  or  repeated  trespasses  recovery  can  or- 
dinarily be  had  only  up  to  the  commencement  of  the  suit,  because  every 
continuance  or  repetition  of  the  nuisance  gives  rise  to  a  new  cause  of 
action,  and  the  plaintiff  may  bring  successive  actions  as  long  as  the 
nuisance  lasts:     *     *     * 

The  cause  of  action,  in  case  of  an  ordinary  nuisance,  is  not  so  much 
the  act  of  the  defendant  as  the  injurious  consequences  resulting  from 
his  act,  and  hence  the  cause  of  action  does  not  arise  until  such  conse- 
quences occur;   nor  can  the  damages  be  estimated  beyond  the  date  of 

3  Part  of  the  oiiinion  is  omitted,  and  the  statement  of  facts  is  rewritten. 


300  COMPENSATORY  DAMAGES.  (Part   5 

bringing  the  first  suit.  5  Am.  &  Eng.  Enc.  Law,  p.  17,  and  cases  in 
notes.  It  has  been  held,  however,  that  where  permanent  structvircs 
are  erected,  resulting  in  injury  to  adjacent  realty,  all  damages  may  be 
recovered  in  a  single  suit.     Id.  p.  20,  and  cases  in  note. 

But  there  is  much  confusion  among  the  authorities  which  attempt 
to  distinguish  between  cases  where  successive  actions  lie  and  those 
in  which  only  one  action  may  be  maintained.  This  confusion  seems  to 
arise  from  the  different  views  entertained  in  regard  to  the  circumstan- 
ces under  which  the  injury  suffered  by  the  plaintiff  from  the  act  of 
the  defendant  shall  be  regarded  as  a  permanent  injury.  "The  chief 
difificulty  in  this  subject  concerns  acts  which  result  in  what  effects  a 
permanent  change  in  the  plaintiff's  land,  and  is  at  the  same  time  a 
nuisance  or  trespass."  Sedg.  Dam.  (8th  Ed.)  §  94.  Some  cases  hold 
it  to  be  unreasonable  to  assume  that  a  nuisance  or  illegal  act  will  con- 
tinue forever,  and  therefore  refuse  to  give  entire  damages  as  for  a 
permanent  injury,  but  allow  such  damages  for  the  continuation  of  the 
wrong  as  accrue  up  to  the  date  of  the  bringing  of  the  suit.  Other  cas- 
es take  the  ground  that  the  entire  controversy  should  be  settled  in  a 
single  suit,  and  that  damages  should  be  allowed  for  the  whole  injury, 
past  and  prospective,  if  such  injury  be  proven  with  reasonable  cer- 
tainty to  be  permanent  in  its  character.  Id.  §  94.  \We  think,  upon  the 
whole,  that  the  more  correct  view  is  presented  in  the  former  class  of 
cases.     *     *     * 

We  do  not  wish  to  be  understood,  however,  as  holding  that  the  rule 
laid  down  in  the  second  class  of  cases  is  not  applicable  under  some 
circumstances,  as  in  the  case  of  permanent  injury  caused  by  lawful 
public  structures,  properly  constructed  and  permanent  in  their  char- 
acter. In  Uline  v.  Railroad  Co.  [101  N.  Y.  98,  4  N.  E.  53G,  54  Am. 
Rep.  661],  a  railroad  company  raised  the  grade  of  the  street  in  front 
of  the  plaintiff's  lots  so  as  to  pour  the  water  therefrom  down  over  the 
sidewalk  into  the  basement  of  her  houses,  flooding  the  same  with  wa- 
ter, and  rendering  them  damp,  unhealthy,  etc.,  and  injuring  the  rental 
value,  etc.  In  discussing  the  question  of  the  damages  to  which  the 
plaintiff  was  entitled  the  court  say :  "The  question,  however,  still  re- 
mains, what  damages?  All  her  damages  upon  the  assumption  that 
the  nuisance  was  to  be  permanent  or  only  such  damages  as  she  sus- 
tained up  to  the  commencement  of  the  action?  *  *  *  There  has 
never  been  in  this  state  before  this  case  the  least  doubt  expressed  in 
any  judicial  decision  *  *  *  [that  the  plaintiff,  in  such  a  case,  is 
entitled  to  recover  only  up  to  the  commencement  of  the  action.  That 
such  is  the  rule  is  as  well  settled  here  as  any  rule  of  law  can  be  by  re- 
peated and  uniform  decisions  of  all  the  courts,  and  it  is  the  prevailing 
doctrine  elsewhere.)'  Then  follows  an  exhaustive  review  of  the 
authorities,  which  sustain  the  conclusion  of  the  court  as  above  an- 
nounced.    *     *     * 

In  the  case  at  bar  the  defendant  did  not  erect  the  house  upon  plain- 
tiff's land,  but  upon  its  own  land.    It  does  not  appear  that  such  change 


Ch.   1)  SINGLENESS    OF    RECOVERY.  301 

might  not  be  made  in  the  roof,  or  in  the  manner  of  discharging  the 
water  from  the  roof  as  to  avoid  the  injury  complained  of.  *  *  * 
It  cannot  be  said  that  the  eave  trough  was  a  structure  of  such  a  per- 
manent character  that  it  might  not  be  changed,  nor  can  it  be  said  that 
the  defendant  would  not  remove  the  cause  of  the  injur)'  rather  than 
submit  to  a  recovery  of  entire  damages  for  a  permanent  injury,  or 
suffer  repeated  recoveries  during  the  continuance  of  the  injury.  The 
facts  in  the  record  tend  to  show  a  continuing  nuisance.  *  *  * 
There  is  a  legal  obligation  to  remove  a  nuisance ;  and  the  "law  will 
not  presume  the  continuance  of  the  wrong,  nor  allow  a  license  to  con- 
tinue a  WTong,  or  a  transfer  of  title,  to  result  from  the  recovery  of 
damages  for  prospective  misconduct."     *     *     * 

The  question  now  under  consideration  has  been  before  this  court 
in  Cooper  v.  Randall,  59  111.  317.  The  action  was  for  damages  to 
plaintiff's  premises,  caused  by  constructing  and  operating  a  flouring 
mill  on  a  lot  near  said  premises,  whereby  chaff,  dust,  dirt,  etc.,  were 
thrown  from  the  mill  into  plaintiff's  house.  It  was  there  held  that  the 
trial  court  committed  no  error  in  refusing  to  permit  the  plaintiff"  to 
prove  that  the  dust  thrown  upon  his  premises  by  the  mill  after  the 
suit  was  commenced  had  seriously  impaired  the  value  of  the  proper- 
ty, and  prevented  the  renting  of  the  house ;  and  we  there  said :  Avhen 
subsequent  damages  are  produced  by  subsequent  acts,  then  the  dam- 
ages should  be  strictly  confined  to  those  sustained  before  suit  brought)" 
It  is  true  that  the  operation  of  the  mill,  causing  the  dust  to  fly,  was 
the  act  of  the  defendant;  but  it  cannot  be  said  that  it  was  not  the  con- 
tinuing act  of  the  present  appellant  to  allow  the  roof  or  the  eave  trough 
to  remain  in  such  a  condition  as  to  send  the  water  against  appellee's 
house  upon  the  occurrence  of  a  rain  storm.  Nor  is  appellant's  house  or 
eave  trough  any  more  permanent  than  was  the  mill  in  the  Cooper  Case. 
In  Railroad  Co.  v.  Hoag,  90  111.  339,  a  railroad  company  had  turned  its 
waste  water  from  a  tank  upon  the  premises  of  the  plaintiff*,  where  it 
spread  and  froze,  and  a  recovery  was  allowed  for  damages  suffered 
after  the  commencement  of  the  suit;  but  it  there  appeared  that  the  ice, 
which  caused  the  damage,  was  upon  plaintiff's  premises  before  the  be- 
ginning of  the  suit,  and  the  damage  caused  resulted  from  the  melt- 
ing of  the  ice  after  the  suit  was  brought.  It  was  there  said :  "The  in- 
jury sustained  by  appellee  between  the  commencement  of  the  suit  and 
the  trial  was  not  from  any  wrongful  act  done  by  appellant  during  that 
time,  but  followed  from  acts  done  before  the  suit  was  commenced." 
Here,  the  water,  which  caused  the  injury,  was  not  upon  plaintift''s 
premises,  either  in  a  congealed  or  liquid  state,  before  the  beginning 
of  the  suit,  but  flowed  thereon  as  the  result  of  rain  storms  which  oc- 
curred after  the  suit  was  commenced.  We  think  the  correct  rule  upon 
this  subject  is  stated  as  follows:  (" "If  a  private  structure  or  other 
work  on  land  is  the  cause  of  a  nuisance  or  other  tort  to  the  plaintiff', 
the  law  cannot  regard  it  as  permanent,  no  matter  with  what  intention 


302  COMPENSATORY  DAMAGES.  (Part    5 

it  was  built;  and  damages  can  therefore  be  recovered  only  to  the  date 
of  the  action."    1  Sedg.  Dam.  (8th  Ed.)  §  1)3.     *     *     *  * 
Reversed. 


BOWERS   V.   MISSISSIPPI    &   R.   R.   BOOM  CO. 

(Supreme  Court  of  Minnesota,  1899.     78  Minn.  398,  81  N.  W.  208,  79  Am.  St 

Rep.  395.) 

The  defendant,  in  1887,  placed  piling  in  the  Mississippi  river  op- 
posite plaintiff's  farm,  which  turned  the  current  from  its  natural 
course  and  upon  plaintiff's  land,  washing  away  the  shores  thereof. 
The  plaintiff  brought  an  action  in  February,  1895,  and  recovered  a 
judgment,  which  was  satisfied.  In  that  action  prospective  damages 
were  not  claimed  nor  assessed.  Four  more  acres  since  that  time  have 
been  washed  away,  and  this  action  is  brought  to  recover  damages 
therefor. 

Start,  J.e  *  *  *  ifhe  plaintiff  was  bound  to  recover  in  his  first 
action  all  the  damages  which  he  was  entitled  to;  and  if  he  was  then 
entitled  to  recover  for  all  injuries,  past,  present,  and  future,  to  his 
land,  by  reason  of  the  acts  of  the  defendant  in  placing  and  maintain- 
ing the  piling  in  the  river,  the  judgment  in  the  prior  action  is  a  bar 
to  this  one;  for  the  plaintiff,  if  such  were  the  case,  could  not  split 
up  his  cause  of  action,  and  recover  a  part  of  his  damages  in  the  first 
action,  and  then  bring  this  action  for  the  rest  of  them.\  The  defendant 
claims  that  the  first  action  was  just  such  a  case,  and  that  the  trial  court 
correctly  held  the  judgment  to  be  a  bar.  The  test,  whether  an  injury 
to  real  estate  by  the  wrongful  act  of  another  is  permanent  in  the  sense 
of  permitting  a  recovery  of  prospective  damages  therefor,  is  not  nec- 
essarily the  character,  as  to  permanency,  of  the  structure  or  obstruc- 
tion causing  the  injury,  but  the  test  is  whether  the  whole  injury  re- 
sults from  the  original  wrongful  act,  or  from  the  wrongful  continu- 
ance of  the  state  of  facts  produced  by  such  act.     *     *     * 

The  adjudged  cases  are  agreed  as  to  the  abstract  rule  that,  where 
the  injury  wholly  accrues  and  terminates  when  the  wrongful  act  caus- 
ing it  is  done,  there  can  be  but  one  action  for  the  redress  of  the  in- 
jury., But,  where  the  injury  is  in  the  nature  of  a  continuing  trespass 
or  nuisance,  successive  actions  may  be  maintained  for  the  recovery 
of  the  damages  as  they  accrue.  In  the  application  of  the  rule,  how- 
ever, the  authorities  are  somewhat  conflicting.     Fortunately,  we  are 

4  Creswell,  J.,  in  Battishill  v.  Reed,  18  C.  B.  69G  (1856),  said: 

"Tlie  only  question  is  wtietlier  my  Brother  Crowder  was  riglit  in  rejecting 
the  evidence  of  diminution  in  the  salable  value  of  the  plaintiff's  premises 
[by  reason  of  the  dropping  of  water  thereon  from  defendant's  overhanging 
eaves]  on  the  supposition  that  they  were  to  remain  in  statu  quo.  I  agree 
with  my  Lord  in  thinking  that  he  would  have  done  wrong  if  he  had  admit- 
ted it." 

5  Part  of  the  opinion  is  omitted,  and  the  statement  of  facts  is  rewritten. 


Ch.  1)  SINGLENESS    OF    RECOVERY.  303 

relieved  from  any  uncertainty  as  to  the  application  of  the  rule  to 
the  facts  of  this  case  by  the  decisions  of  this  court;  (for  they  con- 
clusively establish  the  proposition  that  the  acts  of  the  defendant,  in 
placing  and  maintaining  the  piling  in  the  river,  whereby  the  water, 
logs,  and  ice  were  driven  upon  the  shore  of  the  plaintiff's  land,  were 
in  the  nature  of  a  continuing  trespass  or  nuisance,  and  that  succes- 
sive actions  may  be  brought  for  the  damages  as  they  accrue.® 


(C)  Continuing  Contracts, 
BADGER   v.   TITCOMB. 

(Supreme  Judicial  Court  of  Massacliusetts,  1834.     15  Piclj.  409,  26  Am.  Dec. 

611.) 

Wilde,  J.'^  This  is  an  action  of  assumpsit  on  an  account  annexed 
to  the  writ,  in  which  the  defendant  is  debited  with  sundry  supplies  and 
advances  furnished  seamen,  and  for  brokerage,  in  pursuance  of  a  cer- 
tain contract  made  between  the  parties  before  the  charges  and  items 
in  the  plaintiff's  account  now  claimed  to  be  recovered.    The  defendant 

6  Tlie  following  are  cases  wherein  losses  caused  by  the  erection  of  railways 
and  the  like  are  regarded  as  permanent,  and  hence  to  be  compensated  in  one 
action:  Chicago,  etc.,  R.  Co.  v.  Loeb,  118  111.  203.  8  N.  E.  460.  59  Am.  Rep. 
341  (1884) ;  Highland  A.  R,  Co.  v.  Mathews.  99  Ala.  24,  10  South.  267,  14  L. 
R.  A.  462  (1892) ;  Jacksonville,  etc.,  R.  Co.  v.  Lockwood.  33  Fla.  573.  15  South. 
327  (1894) ;  Allen  v.  Macon,  D.  &  S.  R.  Co.,  107  Ga.  838,  33  S.  E.  696  (1899). 
In  the  following,  similar  losses  were  not  regarded  as  permanent,  and  there- 
fore were  to  be  compensated  in  successive  actions:  Carl  v.  Shebovgan  R. 
Co..  46  Wis.  625,  1  N.  W.  295  (1879) ;  Harmon  v.  Railroad,  87  Tenn.'  614,  11 
S.  W.  703  (18S9) ;  Savannah  R.  Co.  v.  Bourquin.  51  Ga.  378  (1874) ;  Hargreaves 
V.  Kimberly.  26  W.  Va.  787,  53  Am.  Rep.  121  (18.S5).  And  see.  also,  a  leading 
case  in  Uline  v.  N.  Y.  C.  R.  R,  Co.,  101  N.  Y.  98,  4  N.  E.  536,  54  Am.  Rep. 
661   (1886). 

In  Indiana.  B.  &  W.  R.  R.  Co.  v.  Eberle.  110  Ind.  538,  10  N.  E.  575  (1887). 
an  action  brought  to  recover  damages  to  plaintiffs  lot  occasioned  by  the  con- 
struction of  an  emitankment  for  a  railroad  roadbed  upon  the  highway  in  front 
of  such  lot,  Mitchell,  J.,  said: 

"Whether  the  plaintiff  may  recover  for  the  permanent  depreciation  in  the 
value  of  his  property,  depends  upon  the  permanent  character  of  the  injury, 
and  the  form  of  the  action.  Where  the  character  of  the  injury  is  permanent, 
and  the  complaint  for  damages  recognizes  the  right  of  the  defendant  to  con- 
tinue in  the  use  of  the  property  wrongfully  appropriated,  and  to  acquire,  as  a 
result  of  the  suit,  the  plaintiff's  title  to  the  right  appropriated,  we  can  see  no 
reason  why  the  damages  may  not  be  assessed  on  the  basis  of  the  permanent 
depreciation  in  value  of  the  property  injured,  as  in  Henderson  v.  New  York, 
etc.,  R.  Co.,  78  N.  Y.  423  (1879) ;  Lahr  v.  Metropolitan,  etc.,  Co.,  104  N.  Y. 
268,  10  N.  E.  528  (1887).  Where  the  action  is  in  trespass,  to  recover  for  a 
past  injury,  treating  the  obstruction  as  unlawful,  without  any  recognition  of 
the  right  of  the  defendant  to  continue  the  obstruction,  and  acquire  the  right 
appropriated  from  the  recovery  and  payment  of  a  judgment,  then  the  princi- 
ples controlling  the  case  of  Uline  v.  New  York,  etc.,  R.  Co..  101  N.  Y.  98,  4 
N.  E.  536,  54  Am.  Rep.  661  (1886),  and  the  cases  there  cited,  should  govern. 
In  that  event  only  such  damages  as  accrued  up  to  the  time  of  the  commence- 
ment of  the  action  are  recoverable." 

7  Part  of  the  opinion  is  omitted. 


304  COMPENSATORY  DAMAGES.  (Part    5 

pleads  a  former  judgment  in  a  suit  brought  by  the  plaintiff  for  the 
same  identical  cause  of  action;  and  the  general  question  is,  whether 
this  plea  is  a  sufficient  bar.     *     *     * 

/Lt  is  undoubtedly  true,  that  only  one  action  can  be  maintained  for 
the  breach  of  an  entire  contract,  unless,  by  the  terms  of  it,  it  is  in  its 
nature  divisible.  But  if  one  contracts  to  do  several  things,  at  several 
times,  an  action  of  assumpsit  lies  upon  every  default;  for,  although 
the  agreement  is  entire,  the  performance  is  several,  and  the  contract 
is  divisible  in  its  nature.)  Thus,  on  a  note  or  other  contract  payable 
by  installments,  assumpsit  lies  for  non-payment  after  the  first  day ;  or 
where  interest  is  payable  annually,  the  payment  of  the  principal  being 
postponed  to  a  future  time,  assumpsit  lies  for  the  non-payment  of  in- 
terest, before  the  principal  becomes  due  and  payable.  In  all  such  cas- 
es, although  the  contract  is  in  one  sense  entire,  the  several  stipulations 
as  to  payment  and  performance  are  several,  and  are  considered,  in  re- 
spect to  the  remedy,  as  several  contracts.  This  principle  has  long  been 
well  settled,  although  the  law  in  this  respect  has  been  very  much  modi- 
fied by  modern  decisions. 

Still,  however,  the  law  seems  to  remain  unchanged  in  respect  to  ob- 
ligations to  pay  money  by  installments,  so  that  debt  will  not  lie  till 
all  the  days  of  payment  are  past.  A  distinction  has  been  made  between 
a  contract  to  pay  five  sums  of  twenty  pounds  eaCh,  on  five  different 
days,  and  a  contract  to  pay  one  hundred  pounds  by  five  sums  of  twenty 
pounds,  on  different  days;  a  distinction,  as  Lord  Loughborough  re- 
marks, in  the  case  of  Rudder  v.  Price,  1  H.  Bl.  550,  which  is  mere- 
ly verbal,  the  substantial  meaning  being  the  same  in  each. 

After  the  action  of  assumpsit  was  introduced,  a  more  liberal  con- 
struction of  contracts  not  under  seal  was  adopted.  But  at  first  it  was 
held,  that  although,  where  the  contract  was  to  pay  by  installments,  as- 
sumpsit would  lie  on  default  of  the  first  payment,  yet  the  plaintiff  was 
obliged  to  demand  his  whole  damages,  although  only  one  of  the  sev- 
eral installments  was  payable;  on  the  ground  that  the  contract  was 
entire,  and  that  no  new  action  could  be  maintained.     *     *     * 

A  contract  to  do  several  things,  at  several  times,  is  divisible  in  its 
nature;  and  that  an  action  will  lie  for  the  breach  of  any  one  of  the 
stipulations,  each  of  these  stipulations  being  considered  as  a  several 
contract. 

The  defendant  next  contends,  that  a  running  account  for  goods  sold, 
money  paid,  etc.,  is  an  entire  demand,  incapable  of  being  split  up  for 
the  purpose  of  bringing  separate  suits,  and  the  case  of  Guernsey  v. 
Carver,  8  Wend.  (N.  Y.)  492,  24  Am.  Dec.  60,  is  relied  on  in  support 
of  this  position;  and  if  that  case  was  rightly  decided,  we  think  it 
would  maintain  the  present  defense.  But  we  know  of  no  principle  of 
law,  -nor  of  any  other  decided  case,  on  which  the  decision  in  that  case 
can  be  sustained.  It  is  said  that  the  law  abhors  a  multiplicity  of  suits ; 
and  this  seems  to  be  the  only  ground  of  the  decision  in  that  case.  But 
that  reason  would  apply  to  notes  of  hand  and  other  demands,  unques- 


Ch.  1)  SINGLENESS  OF  RECOVERY.  305 

tionably  several  and  independent.  If  any  evils  should  arise  from  mul- 
tiplying suits  which  might  be  joined,  it  is  for  the  legislature  to  pro- 
vide a  remedy.  There  is  already  a  law  on  this  subject,  by  which  a 
plaintiff,  v/ho  brings  several  actions  on  demands  which  may  be  joined, 
is  restricted  in  the  recovery  of  his  costs;  and  if  the  provisions  of  this 
kw  are  not  sufficient,  it  is  for  the  legislature  to  supply  the  deficiency, 
(^s  the  law  is,  we  think  it  can  not  be  maintained,  that  a  running  ac- 
count for  goods  sold  and  delivered,  money  loaned,  or  money  had  and 
received,  at  different  times,  will  constitute  an  entire  demand,  unless 
there  is  some  agreement  to  that  eft'ect,  or  some  usage  or  course  of 
dealing,  from  which  such  an  agreement  or  understanding  may  be  in- 
ferred. No  such  agreement,  or  course  of  dealing,  is  set  up  in  this 
case,  and  consequently,  the  defendant's  plea,  that  the  cause  of  action 
in  this  suit  is  identical  with  that  of  the  former  action,  can  not  be  main- 
tained. I 

With  regard  to  the  second  ground  of  defense,  we  think  the  princi- 
ple of  law  on  which  it  depends  is  well  settled.  If  the  items  now  claim- 
ed could  have  been  proved  in  the  former  action,  the  presumption  is 
that  they  were  so  proved.  But  this  presumption  may  be  rebutted ;  and 
if  the  plaintiff  can  prove  that  the  claims  now  made  were  not  submit- 
ted to  the  referee  in  the  former  action,  and  that  no  evidence  was  of- 
fered to  support  them,  he  may  well  recover  them  in  this  action. 
*     *     * 


BEACH   et   al.   v.    GRAIN. 
(Court  of  Appeals  of  New  York,  1S4S.     2  N.  Y.  SG,  49  Am.  Dec.  3G9.) 

Error  to  the  Supreme  Court,  to  review  a  judgment  reversing  a 
judgment  for  defendants  in  covenant.  The  plaintiff  had  granted  a 
right  of  way  across  his  land,  with  a  covenant  that  he  should  erect  a 
gate  at  the  entrance  of  the  way,  and  the  defendants  had  covenanted 
in  the  same  instrument  to  make  all  the  repairs  necessary  to  be  made  to 
the  gate.  In  course  of  time,  some  person  unknown  took  down  and 
carried  away  the  gate.  The  plaintiff  requested  the  defendants  to  re- 
place it,  but  they  refused.  He  then  brought  an  action  against  them  on 
their  covenant,  and  recovered  one  dollar  damages.  They  still  neglect- 
ed to  replace  the  gate,  and  he  then  brought  the  present  action. 

Wright,  j.s  *  *  *  (^jg  the  present  action  barred  by  a  former 
recovery?  The  covenant  of  the  Beaches  is  a  continuing  covenant. 
Their  obligation  is  to  repair  the  gate  as  often  as  repairs  are  needed, 
and  they  cannot  discharge  themselves  from  the  effect  of  their  contract, 
or  change  the  rights  of  the  parties,  by  a  mere  refusal  to  perform.  In 
other  words,  they  cannot,  by  such  refusal,  put  at  an  end,  for  all  future 

»  Part  of  the  opinion  is  omitted. 
Gii.b.Dam.— 20 


306  COMPENSATORY   DAMAGES.  (Part    5 

time,  the  duty  imposed  upon  them  by  their  covenantA  Indeed,  the 
counsel  for  the  plaintiff  in  error  admits,  that  if  Grain  should  replace 
the  gate,  the  covenant  of  his  clients  may  again  become  operative ;  thus, 
by  his  admission,  negativing  the  idea  that  the  refusal  to  rebuild  or  re- 
place worked,  under  the  circumstances  of  this  case,  a  total  and  final 
breach  of  the  covenant,  insomuch  that  the  measure  of  damages  in  the 
former  suit  wsls,  or  should  have  been,  the  cost  of  erecting  a  new  gate, 
and  such  sum  as  would  be  necessary  to  keep  it  in  repair  during  the  pe- 
riod that  Grain  should  desire  it  to  be  kept  up.  Neglecting,  at  any  time, 
to  make  necessary  repairs  to  the  gate,  or  to  shut  it  in  passing  or  repas- 
sing, would  have  been  a  partial  breach  of  their  covenant,  and  Grain 
could  have  recovered  damages  for  any  injury  necessarily  resulting 
therefrom.  So  for  a  like  neglect,  damages  might  be  recovered  for 
injuries  accruing  subsequently  to  the  former  action.  It  is  not  per- 
ceived, therefore,  how  a  refusal  to  repair  could  change  the  obligations 
or  rights  of  the  parties,  or  introduce  a  new  and  different  rule  of  dam- 
ages. To  constitute  an  effectual  bar,  the  cause  of  action  in  the  former 
suit  should  be  identical  with  that  of  the  present.  It  is  the  same  cause 
of  action  when  the  same  evidence  will  support  both  the  actions,  al- 
though they  happen  to  be  grounded  on  different  w^itsi  Rice  v.  King, 
7  Johns.  20.  But  the  evidence  in  both  actions  may  be  in  part  the  same ; 
yet  the  subject-matter  essentially  dift'erent,  and  in  such  case  there  is 
no  bar.  For  example,  if  money  be  awarded  to  be  paid  at  different 
times,  assumpsit  will  lie  on  the  award  for  each  sum  as  it  becomes  due. 
So,  on  an  agreement  to  pay  a  sum  of  money  by  installments,  an  action 
will  lie  to  recover  each  installment  as  it  becomes  due.  In  covenant  for 
nonpayment  of  rent,  or  of  an  annuity  payable  at  different  times,  the 
plaintiff  may  bring  a  new  action  toties  quoties  as  often  as  the  respective 
sums  become  due  and  payable;  yet  in  each  of  these  examples,  the 
evidence  to  support  the  different  actions  is  in  part  the  same.  In  this 
case  the  same  covenant  was  the  foundation  of  both  actions ;  the  same 
evidence,  therefore,  in  part,  is  alike  common  to  both ;  but  there  is  this 
difference,  in  the  former  suit  the  breach  was  assigned,  and  the  actual 
damages  laid  as  having  accrued  prior  to  the  commencement  thereof ; 
in  the  present,  damages  are  sought  to  be  recovered  for  a  breach  sub- 
sequent to  such  former  action.  In  the  present  action,  the  plaintiff' 
could  not  have  recovered  for  damages  that  had  accrued  prior  to  the 
first  suit,  for  he  is  not  permitted  to  split  up  an  entire  demand,  and 
bring  several  suits  thereon;  but  he  may  show  a  breach  subsequent  to 
the  former  suit,  and  recover  the  actual  damages  arising  from  such 
subsequent  breach.  On  the  last  trial,  a  breach  of  the  covenant  to  re- 
pair subsequently  to  the  former  action  was  admitted,  and  for  this 
Grain  was  entitled  to  recover  nominal  damages,  with  such  actual  dam- 
ages as  could  be  shown  to  have  accrued  from  such  breach  since  the 
former  recovery.  This  must  necessarily  be  the  effect  of  a  continuing 
covenant.  The  former  recovery,  therefore,  could  be  no  bar  to  the 
present  suit. 


SINGLENESS    OF    RECOVERY.  '         307 

The  plaintiffs  in  error  insist  that  Grain  did  recover,  or  legally  should 
have  recovered,  in  the  first  suit,  a  sum  sufficient  to  enable  him  to  replace 
the  gate.  But  this  argument  supposes  that  upon  the  Beaches'  refus- 
ing to  repair,  there  was  a  total  breach  of  their  covenant,  and  that  they 
could  relieve  themselves  from  subsequent  obligation  by  the  payment 
of  a  gross  sum  in  damages.  If  this  were  so,  Grain's  recovery  should 
also  have  embraced  a  sum  sufficient  to  keep  the  gate  in  necessary  re- 
pair whilst  it  was  his  pleasure  that  it  should  remain ;  a  sum  that  I 
imagine  there  would  be  insuperable  difficulty  to  estimate.  Whilst  the 
obligation  of  the  plaintiffs  in  error  continued,  and  it  was  entirely  prac- 
ticable for  them  to  perform,  I  do  not  well  see  how  the  value  of  a  new 
gate  could  have  legitimately  formed  a  part  of  the  damages  to  be  re- 
covered under  the  pleadings  and  evidence  in  the  first  suit.  It  is  pos- 
sible, that  if  Grain,  for  the  protection  of  his  lands,  and  with  the 
view  of  making  the  default  of  the  Beaches  the  least  expensive  to  them, 
had,  prior  to  such  suit,  rebuilt  or  replaced  the  gate,  he  might  have  re- 
covered the  cost  thereof  in  the  shape  of  damages.  But  it  is  enough  to 
say  that  no  such  thing  was  done ;  neither  did  the  law  devolve  upon 
him  a  duty  which  the  plaintiffs  in  error  had  covenanted  to  perform, 
and  which,  in  its  performance,  was  neither  difficult  nor  impracticable. 
As  a  matter  of  fact,  it  is  obvious,  from  the  pleadings  and  evidence  in 
the  first  suit,  and  the  amount  of  the  judgment  therein,  that  the  cost 
of  erecting  a  new  gate  was  not  recovered ;  as  a  matter  of  law,  under 
the  circumstances  of  this  case,  it  ought  not  to  have  been.     *     *     * 


FISH  V.   FOLLEY. 

(Supreme  Court  of  New  York,  1843.     6  Hill,  54.) 

The  plaintiff  alleged  that  the  defendant's  intestate,  Hubbard,  cove- 
nanted to  furnish  sufficient  water  out  of  his  milldam  to  run  plaintift''s 
mill  and  carding  machine.  No  power  was  furnished  after  the  year 
1826.  The  plaintiff  had  recovered  damages  for  breach  of  the  same 
covenant  in  1835.  This  action  was  brought  in  1840  to  recover  further 
damages. 

Nelson,  C.  J.®  As  I  understand  this  case,  there  has  been  a  total 
failure  to  perform  the  covenants  on  the  part  of  the  intestate  and  those 
representing  him,  since  the  year  1826,  and  a  recovery  had  for  the  dam- 
ages arising  therefrom  to  the  plaintiff  down  to  the  year  1835,  the  time 
the  former  suit  was  brought.  He  now  claims  to  recover  from  that  time 
to  the  commencement  of  this  action,  insisting  that  the  covenant  is  a 
continuing  one,  and  the  liability  to  perform  on  the  part  of  the  covenant 
or  and  his  representatives,  perpetual.  I  cannot  assent  to  this  construc- 
tion. It  is  true,  the  covenant  stipulated  for  a  continued  supply  of  wa- 
ter to  the  plaintiff's  mills ;   and  in  this  respect  it  may  be  appropriately 

»  Part  of  the  opinion  is  omitted,  and  tlie  statement  of  facts  is  rewritten. 


■ct^>^,C^  * 


v_ 


308  COMPENSATORY  DAMAGES.  (Part    5 

Styled  a  continuing  contract.  Yet,  like  any  other  entire  contract,  a 
total  breach  put  an  end  to  it,  and  gave  the  plaintiff  a  right  to  sue  for 
an  equivalent  in  damages.  He  obtained  that  equivalent  or  should  have 
obtained  it  in  the  former  suit.  To  allow  a  recovery  again,  would  be 
splitting  up  an  entire  cause  of  action,  in  violation  of  established  prin- 
ciples.   Bendernagle  v.  Cocks,  19  Wend.  207.     *     *     *  " 


REMELEE   v.   HALE. 

(Supreme  Court  of  Vermont,  1859.     31  Yt.  582,  7G  Am.  Dec.  140.) 

The  defendant,  in  consideration  of  a  conveyance  to  him,  agreed  that 
the  plaintiff  and  his  daughter  Clarissa  might  live  with  him,  "with  the 
privileges  of  board,  fire,  light  and  housekeeping,"  as  long  as  the  plain- 
tiff and  his  daughter  should  choose.  On  a  submission  to  arbitrators, 
they  found  a  breach  of  the  agreement  and  awarded  damages,  upon 
which  award  the  present  action  is  founded. 

Poland,  J.^^  The  first  objection  made  to  the  validity  of  the  award 
made  by  the  arbitrators  is,  that  they  treated  the  contract  between  the 
parties,  which  formed  the  subject  of  difference,  and  of  the  submission, 
as  having  been  so  entirely  broken  and  violated  that  they  awarded  dam- 
ages for  the  whole  period  the  contract  was  to  continue,  though  the 
whole  time  had  not  elapsed.  It  is  insisted  that  in  the  action  which  had 
been  brought,  or  in  any  action  which  could  have  been  brought  for 
the  breach  of  it  before  its  final  termination,  the  plaintiff  could  only 
have  recovered  such  damage  as  he  had  sustained  when  he  brought 
his  suit.  It  is  not  true,  however,  as  a  general  rule,  that  a  party  can 
not  in  a  suit  at  law  recover  damages  beyond  what  he  has  actually  sus- 
tained at  the  time  of  bringing  his  suit,  or  even  at  the  time  of  trial.  I'ln 
all  cases  of  actions  for  personal  injuries  by  the  wrongful  act  or  neg- 
lect of  another,  the  plaintiff  recovers  not  only  for  such  damages  as  he 
has  sustained,  but  for  all  such  as  he  will  in  future  suffer  from  the  in- 
jury, and  he  can  not  bring  successive  actions.  Nor  is  the  principle 
general  in  its  application  to  actions  for  the  breach  of  contracts,  the 
performance  of  which  is  to  extend  through  a  period  of  time  which 
has  not  elapsed  when  the  action  is  brought,  or  when  the  suit  is  tried. 

The  true  criterion,  whether  a  party  in  such  action  can  recover  dam- 
ages for  nonperformance  of  the  whole  contract,  and  so  for  damages 
not  sustained  when  the  action  is  brought  and  suit  tried,  is,  whether 
there  has  been  such  a  breach  of  the  contract  as  authorizes  the  plaintiff 
to  treat  it  as  entirely  putting  an  end  to  the  contract.  Whether  this 
is  so  or  not,  must  depend  upon  the  facts  of  each  particular  case,  and 
often  it  is  nice  and  difficult  to  determine  whether  the  breach  of  such 
continuing  contract  is  entire  and  total,  so  as  to  entitle  the  party  to 

10  See,  also,  Phelps  v.  N.  H.  &  N.  Co.,  43  Conn.  453  (1876). 

11  Part  of  the  opinion  is  omitted,  and  the  statement  of  facts  is  rewritten. 


Ch.  1)  SINGLENESS   OF    RECOVERY.  309 

recover  damages  for  an  entire  nonfulfillment,  or  only  partial  and  tem- 
porary, so  that  a  party  can  recover  only  such  damages  as  he  has  al- 
ready sustained,  and  he  must  still  accept  the  performance  of  the  resi- 
due of  the  contract,  if  the  other  party  will  fulfill  it.  In  the  case  of  this 
contract  there  might  be  such  a  breach  of  the  contract  as  would  entitle 
the  plaintiff  to  maintain  an  action  which  would  not  authorize  a  re- 
covery as  for  an  entire  breach ;  some  slight  omission  to  fulfill  the  con- 
tract in  relation  to  fire  or  lights,  accidental  or  even  negligent,  but  not 

gross  or  willful. 

At  the  same  time,  if  the  defendant  should  wholly  and  absolutely 
refuse  to  keep  the  plaintiff  for  a  long  period  of  time,  and  compel  him 
to  furnish  a  house  and  maintenance  for  himself,  with  notice  that  the 
defendant  did  not  intend  further  to  perform  the  contract  on  his  part, 
or  if  he  should  grossly  and  wantonly  ill  treat  the  plaintiff  so  that  he 
could  no  longer  live  quietly  and  comfortably  with  the  defendant,  we 
think  such  a  breach  might  well  be  regarded  as  entire,  and  justify  a 
recovery  of  damages  for  the  full  term  of  the  contract. 

It  cannot  be  said  then,  as  a  proposition  of  law,  that  a  breach  of  such 
a  contract  will,  or  will  not,  entitle  a  party  to  damages  beyond  what  he 
has  already  in  fact  sustained,  but  it  becomes  a  question  of  fact  for  the 
jury  to  say  in  each  case,  whether  the  breach  is  entire  or  partial.  In  this 
case  it  was  of  course  a  question  for  the  arbitrators  to  decide,  and  as 
every  reasonable  intendment  is  to  be  made  to  support  the  judgments 
of  these  tribunals  of  the  parties'  own  creation,  we  are  bound  to  sup- 
pose that  the  breach  of  the  contract  was  such  as  to  entitle  the  plaintiff 
to  recover  for  an  entire  nonfulfillment.     *     *     *  12 

12  See,  also.  Ferguson  v.  Ferguson,  2  N.  T.  360  (1S49),  and  Schell  v.  Plumb, 
55  N.  Y.  592  (1874). 

Field,  J.,  in  Parker  v.  Russell,  133  Mass.  74  (1SS2): 

"In  this  case,  the  declaration  alleges  in  effect  a  promise  to  support  the 
plaintiff  during  his  life,  from  and  after  receiving  the  conveyance  of  certain 
real  estate,  an  acceptance  of  such  conveyance,  and  a  neglect  and  refusal  to 
perform  the  agreement.  These  are  sufficient  allegations  to  enable  the  plain- 
tiff to  recover  damages  as  for  a  total  breach.  The  court  instructed  the  jury 
that  'if  the  defendant  for  a  period  of  about  two  years  neglected  to  furnish 
aid  or  support  to  the  plaintiff,  without  any  fault  of  the  plaintiff,  the  plaintiff 
might  treat  the  contract  as  at  an  end,  and  recover  damages  for  the  breach  of 
the  contract  as  a  whole.'  We  cannot  say  that  this  instruction  was  erroneous 
as  applied  to  the  facts  in  evidence  in  the  cause,  which  are  not  set  out.  The 
jury  must  have  found  that  the  plaintiff  did  treat  the  contract  as  finally  broken 
by  the  defendant,  and  the  propriety  of  this  finding  on  the  evidence  is  not  be- 
fore us.    Judgment  on  the  verdict  for  the  larger  sum." 


^^'4-/  y  ^-  '"^ 


310  COMPENSATORY   DAMAGES.  (Part    5 

McMULLEN   V.   DICKINSON   CO. 

(Supreme  Court  of  Minnesota,  1895.     60  Minn.  156,  62  N.  W.  120,  27  L.  R.  A. 
409,  51  Am.  St.  Rep.  511.) 

Canty,  J.^'  On  the  25th  of  February,  1892,  the  plaintiff  entered 
into  a  written  agreement  with  the  defendant  corporation,  whereby  it 
agreed  to  employ  him  as  its  assistant  manager,  from  and  after  that 
date,  as  long  as  he  should  own  in  his  own  name  50  shares  of  the  capi- 
tal stock  of  said  corporation,  fully  paid  up,  and  the  business  of  said 
corporation  shall  be  continued,  not  exceeding  the  term  of  the  exist- 
ence of  said  corporation,  and  pay  him  for  such  services  the  sum  of 
$1,500  per  annum,  payable  monthly  during  that  time,  and  whereby  he 
agreed  to  perform  said  services  during  that  time.  He  has  ever  since 
owned,  as  provided,  the  50  shares  of  said  stock,  and  performed  said 
services  ever  since  that  time  until  the  38th  of  October,  1893,  when  he 
was  discharged  and  dismissed  by  the  defendant  without  cause.  He 
alleges  these  facts  in  his  complaint  in  this  action,  and  also  alleges  that 
he  has  been  ever  since  he  was  so  dismissed,  and  is  now,  ready  and  will- 
ing to  perform  said  services  as  so  agreed  upon,  and  that  there  is  now 
due  him  the  sum  of  $125  for  each  of  the  months  of  March  and  April, 
1894,  and  prays  judgment  for  the  sum  of  $250.  The  defendant  in  its 
answer,  for  a  second  defense,  alleges  that  on  March  2,  1894,  plaintiff 
commenced  a  similar  action  to  this  for  the  recovery  of  the  sum  of 
$512,  for  the  period  of  time  from  his  said  discharge  to  the  1st  of 
March,  1894,  alleging  the  same  facts  and  the  same  breach,  and  that 
on  April  16,  1894,  he  recovered  judgment  in  that  action  against  this 
defendant  for  that  sum  and  costs,  and  this  is  pleaded  in  bar  of  the 
present  action.  The  plaintiff  demurred  to  this  defense,  and  from  an 
order  sustaining  the  demurrer  the  defendant  appeals. 

The  plaintiff  brought  each  action  for  installments  of  wages  claimed 
to  be  due,  on  the  theory  of  constructive  service.  The  doctrine  of  con- 
structive service  was  first  laid  down  by  Lord  Ellenborough  in  Gandell 
v.  Pontigny,  4  Campb.  375,  and  this  case  was  followed  in  England  and 
this  country  for  a  long  time  (Wood,  Mast.  &  Serv.  254),  and  is  still 
upheld  by  several  courts  (Isaacs  v.  Davies,  68  Ga.  169;  Armfield  v. 
Nash,  31  Miss.  361;  Strauss  v.  Meertief,  64  Ala.  299,  38  Am.  Rep. 
8).  It  has  been  repudiated  by  the  courts  of  England  (Goodman  v. 
Pocock,  15  Adol.  &  E.  [N.  S.]  574;  Wood,  Mast.  &  Serv.  254),  and 
by  many  of  the  courts  in  this  country  (Id.;  and  notes  to  Decamp  v. 
Hewitt,  43  Am.  Dec.  204),  as  unsound  and  inconsistent  with  itself,  as 
it  assumes  that  the  discharged  servant  has  since  his  discharge  remained 
ready,  willing,  and  able  to  perform  the  services  for  which  he  was  hir- 
ed, while  sound  principles  require  him  to  seek  employment  elsewhere, 
and  thereby  mitigate  the  damages  caused  by  his  discharge.  His  rem- 
edy is  for  damages  for  breach  of  the  contract,  and  not  for  wages  for 

13  Part  of  the  opinion  is  omitted. 


Ch.  1)  SINGLENESS    OF    RECOVERY.  311 

its  performance.     But  the  courts,  which  deny  his   right  to  recover 
wages  as  for  constructive  service,  have  denied  him  any  remedy  except 
one  for  damages,  which,  if  seemingly  more  logical  in  theory,  is  most 
absurd  in  its  practical  results.    These  courts  give  him  no  remedy  ex- 
cept the  one  which  is  given  for  the  recovery  of  loss  of  profits  for  the 
breach  of  other  contracts,  and  hold  that  the  contract  is  entire,  even 
though  the  wages  are  payable  in  installments,  and  that  he  exhausts 
his  remedy  by  an  action  for  a  part  of  such  damages,  no  matter  how 
lono-  the  contract  would  have  run  if  it  had  not  been  broken.    See  James 
V.  Allen  Co.,  44  Ohio  St.  22G,  6  N.  E.  246;    Moody  v.  Levench,  4 
Daly  (N    Y.)  401;    Colburn  v.  Woodworth,  31  Barb.   (N.  Y.)  381; 
Booge  v.  Railroad  Co.,  33  Mo.  212,  82  Am.  Dec  160.    No  one  action 
to  recover  all  the  damages  for  such  a  breach  of  such  a  contract  can 
furnish  any  adequate  remedy,  or  do  anything  like  substantial  justice 
between  the  parties.    By  its  charter  the  life  of  this  corporation  is  thir- 
ty years.     If  the  action  is  commenced  immediately  after  the  breach, 
how  can  prospective  damages  be  assessed  for  this  thirty  years,  or  for 
even  one  year?    fTo  presume  that  the  discharged  servant  will  not  be 
able  for  a  large  part  of  that  time  to  obtain  other  employment,  and 
award  him  large  damages,  might  be  grossly  unjust  to  the  defendant. 
Again,  the  servant  is  entitled  to  actual  indemnity,  not  to  such  specula- 
tive indemnity  as  must  necessarily  be  given  by  awarding  him  pro- 
spective damages.  \  His  contract  was  not  a  speculative  one,  and  the  law 
should  not  make  it^  such.    That  men  can  and  do  find  employment  is  the 
general  rule,  and  enforced  idleness  the  exception.     It  should  not  be 
presumed  in  advance  that  the  exceptional  will  occur. 

This  is  not  in  conflict  with  the  rule  that,  in  an  action  for  retro- 
spective damages  for  such  a  breach,  the  burden  is  on  the  defendant 
to  show  that  the  discharged  servant  could  have  found  employment. 
In  that  case,  as  in  others,  reasonable  diligence  will  be  presumed.  When 
it  appears  that  he  has  not  found  employment  or  been  employed,  there 
is  no  presumption  that  it  was  his  fault,  and,  under  such  circumstances, 
it  will  be  presumed  that  the  exceptional  has  happened.  But  to  pre- 
sume that  the  exceptional  will  happen  is  very  different.  In  an  action 
for  such  a  breach  of  a  contract  for  services,  prospective  damages  be- 
yond the  day  of  trial  are  too  contingent  and  uncertain,  and  cannot  be 
assessed.  2  Suth.  Dam.  471;  Gordon  v.  Brewster,  7  Wis.  355;  Fowler 
&  Proutt  v.  Armour,  24  Ala.  194;  Wright  v.  Falkner,  37  Ala.  274;  Col- 
burn V.  Woodworth,  31  Barb.  (N.  Y.)  385.  Then,  if  the  discharged 
servant  can  have  but  one  action,  it  is  necessary  for  him  to  starve  and 
wait  as  long  as  possible  before  commencing  it.  If  he  waits  longer  than 
six  years  after  the  breach,  the  statute  of  limitations  will  have  run,  and 
he  will  lose  his  whole  claim.  If  he  brings  his  action  within  the  six 
years,  he  will  lose  his  claim  for  the  balance  of  the  time  after  the  day  of 
trial  '  Under  this  rule,  the  measure  of  damages  for  the  breach  of  a  30 
year  contract  is  no  greater  than  for  the  breach  of  a  6  or  7  year  contract. 
Such  a  remedy  is  a  travesty  on  justice.     Although  the  servant  has 


312  COMPENSATORY  DAMAGES.  (Part   5 

Stipulated  for  a  weekly,  monthly,  or  quarterly  income,  it  assumes  that 
he  can  live  for  years  without  any  income,  after  which  time  he  will 
cease  to  live  or  need  income.  The  fallacy  lies  in  assuming  that,  on 
the  breach  of  the  contract,  loss  of  wages  is  analogous  to  loss  of  profits, 
and  that  the  same  rule  of  damages  applies,  while  in  fact  the  cases  are 
wholly  dissimilar,  and  there  is  scarcely  a  parallel  between  them.  In 
the  one  case  the  liability  is  absolute;  in  the  other  it  is  contingent.  If 
the  rule  of  damages  were  the  same,  then,  in  the  case  of  the  breach  of 
the  contract  for  service,  the  discharged  servant  should  be  allowed  on- 
ly the  amount  which  the  stipulated  wages  exceed  the  market  value  of 
the  service  to  be  performed,  without  regard  to  whether  he  could  ob- 
tain other  employment  or  not.  If  the  stipulated  wages  did  not  exceed 
the  market  value  of  the  service,  he  would  be  entitled  to  only  nominal 
damages;  and  in  no  case  could  his  failure  to  find  other  employment 
vary  the  measure  of  damages.  Clearly,  this  is  not  the  rule.  In  the 
one  case  the  liability  is  a  contingent  liability  for  loss  of  wages;  in  the 
other  case  it  is  an  absolute  liability  for  loss  of  profits.  Such  contin- 
gent liability  cannot  be  ascertained  in  advance  of  the  happening  of  the 
contingency,  and  that  is  why  prospective  damages  for  loss  of  wages 
are  too  contingent  and  are  too  speculative  and  uncertain  to  be  allow- 
ed, while  retrospective  damages  for  such  loss  are  of  the  most  certain 
character.  On  the  other  hand,  if  damages  for  loss  of  profits  are  too 
speculative  and  uncertain  to  be  allowed,  they  are  equally  so,  whether 
prospective  or  retrospective.  "The  pecuniary  advantages  which  would 
have  been  realized  but  for  the  defendant's  act  must  be  ascertained 
without  the  aid  which  their  actual  existence  would  afford.  The  plain- 
tiff's right  to  recover  for  such  a  loss  depends  on  his  proving  with  suffi- 
cient certainty  that  such  advantages  would  have  resulted,  and,  there- 
fore, that  the  act  complained  of  prevented  them."  1  Suth.  Dam.  (1st 
Ed.)  107. 

It  is  our  opinion  that  the  servant  wrongfully  discharged  is  entitled 
to  indemnity  for  loss  of  wages,  and  for  the  full  measure  of  this  indem- 
nity the  master  is  clearly  liable.  This  liability  accrues  by  installments 
on  successive  contingencies.  Each  contingency  consists  in  the  failure 
of  the  servant  without  his  fault  to  earn,  during  the  installment  period 
named  in  the  contract,  the  amount  of  wages  which  he  would  have  earn- 
ed if  the  contract  had  been  performed,  and  the  master  is  liable  for  the 
deficiency.  This  rule  of  damages  is  not  consistent  with  the  doctrine 
of  constructive  service,  but  it  is  the  rule  which  has  usually  been  applied 
by  the  courts  which  adopted  that  doctrine.  Under  that  doctrine  the 
master  should  be  held  liable  to  the  discharged  servant  for  wages  as 
if  earned,  while  in  fact  he  is  held  only  for  indemnity  for  loss  of  wages. 
The  fiction  of  constructive  service  is  false  and  illogical,  but  the  meas- 
ure of  damages  given  under  that  fiction  is  correct  and  logical.  It  is 
simply  a  case  of  a  wrong  reason  given  for  a  correct  rule.  Instead  of 
rejecting  the  false  reason  and  retaining  the  correct  rule,  many  courts 
have  rejected  both  the  rule  and  the  reason.     In  our  opinion,  this  rule 


Ch.  1)  SINGLENESS    OF    RECOVERY.  313 

of  damages  should  be  retained;  but  the  true  ground  on  which  it  is 
based  is  not  that  of  constructive  service,  but  the  liabiUty  of  the  master 
to  indemnify  the  discharged  servant,  not  to  pay  him  wages,  and  this 
indemnity  accrues  by  instaUments.  (The  original  breach  is  not  total, 
but  the  failure  to  pay  the  successive  installments  constitutes  successive 
breaches.  Since  the  days  of  Lord  Ellenborough  this  class  of  cases 
has  been  in  some  courts  an  exception  to  the  rule  that  there  can  be  but 
one  action  for  damages  for  the  breach  of  a  contract,  and  there  are 
strong  reasons  why  it  should  be  an  exception.  Because  the  discharged 
servant  may,  if  he  so  elects,  bring  successive  actions  for  the  install- 
ments of  indemnity  as  they  accrue,  it  does  not  follow  that  he  cannot 
elect  to  consider  the  breach  total,  and  bring  one  action  for  all  his 
damages,  and  recover  all  of  the  same  accruing  up  to  the  time  of 
trial,   i*     *     * 


HOWARD    V.    DALY. 
(Court  of  Appeals  of  New  York,  1875.     61   N.  T.  362.) 

The  plaintiff  agreed  to  act  at  the  Fifth  Avenue  Theater  in  New 
York  for  the  defendant  from  September  15,  1870,  to  July  1,  1871,  at 
a  salary  of  $10  per  week.  She  alleged  that,  though  willing  to  per- 
form, she  was  not  allowed  to  take  part,  and  that  she  had  been  paid 
nothing.    From  a  judgment  for  $410,  defendant  appealed. 

D WIGHT,  C.^*  *  *  *  (The  next  point  is,  whether  the  plaintiff 
was  bound,  notwithstanding  the  defendant's  act,  to  keep  herself  in 
readiness  to  perform  the  contract  at  all  times,  or  in  any  form  to  tender 
her  services.)  This  inquiry  involves  the  correct  theory  of  the  nature  of 
the  action.  Does  the  plaintiff  sue  for  wages  on  the  hypothesis  of  a 
constructive  service,  or  for  damages?  This  question,  as  far  as  ap- 
pears, has  never  been  fully  discussed  in  the  appellate  courts  of  this 
state ;'  and,  on  account  of  both  its  novelty  and  importance,  will  be  con- 
sidered at  length. 

It  is  very  plain,  that  if  a  servant  has  actually  performed  the  service 
which  he  has  agreed  to  render  under  the  contract,  he  has  a  right  to  re- 
cover wages.  That  would  have  been  true  in  the  case  at  bar  if  the  de- 
fendant had  received  her  services  for  the  stipulated  period.  Had  he 
not  paid  her  according  to  the  agreement,  her  action  would  have  beevi 
for  the  fixed  wages.  If,  on  the  other  hand,  she  is  wrongfully  dis- 
charged, and  the  relation  of  master  and  servant  is  broken  off  as  far 
as  he  is 'concerned,  it  is  clear  that  she  cannot  recover  for  wages  in  the 
same  sense  as  if  she  had  actually  rendered  the  service.  In  an  early 
nisi  prius  case  the  fiction  of  a  "constructive"  service  was  resorted  to, 
and  a  servant  discharged  without  cause  was  allowed  to  recover  wages. 
Gandell  v.  Pontigny,  4  Campb.  375.     See,  also,  Collins  v.  Price,  4 

14  Part  of  the  opinion  is  omitted,  and  tlie  statement  of  facts  is  rewritten. 


314  COMPENSATORY   DAMAGES.  (Part    5 

Bing.  132.     This  view  has  been  discarded  in  later  decisions  and  has 
been  disapproved  by  text-writers.     *     *     * 

These  cases  and  authorities  hold,  in  substance,  that  if  a  servant  be 
wrongfully  discharged,  he  has  no  action  for  wages,  except  for  past 
services  rendered,  and  for  sums  of  money  that  have  become  due.  As 
far  as  any  other  claim  on  the  contract  is  concerned,  he  must  sue  for 
the  injury  he  has  sustained  by  his  discharge,  in  not  being  allowed  to 
serve  and  earn  the  wages  agreed  upon.  Smith  on  Master  and  Serv- 
ant, 96,  note  "n";  Elderton  v.  Emmons,  6  Com.  Bench,  187;  Beckham 
V.  Drake,  2  Ho.  Lords  Cases,  606.  (A  servant  wrongfully  discharged 
has  but  two  remedies  growing  out  of  the  wrongful  act:  (1)  He  may 
treat  the  contract  of  hiring  as  continuing,  though  broken  by  the  mas- 
ter, and  may  recover  damages  for  the  breach.  (2)  He  may  rescind 
the  contract;  in  which  case  he  could  sue  on  a  quantum  meruit,  for 
services  actually  rendered.  ,'  These  remedies  are  independent  of  and 
additional  to  his  right  to  sue  for  wages,  for  sums  actually  earned  and 
due  by  the  terms  of  the  contract.  This  last  amount  he  recovers  be- 
cause he  has  completed,  either  in  full  or  in  a  specified  part,  the  stipula- 
tions between  the  parties.  The  first  two  remedies  pointed  out  are  ap- 
propriate to  a  wrongful  discharge. 

To  apply  these  principles  to  the  case  at  bar,  the  plaintiff  must  have 
been  ready  and  willing  to  continue  in  the  defendant's  service  at  the 
time  of  the  latter's  refusal  to  receive  her  into  his  employment.  2  Wm. 
Saund.  352  et  seq.,  note  to  Peeters  v.  Opie.  /  It  is  not  necessary,  how- 
ever, that  she  should  go  through  the  barren  form  of  offering  to  ren- 
der the  service]  Wallis  v.  Warren,  4  Exch.  361;  Levy  v.  Lord  Her- 
bert, 7  Taunt:  314;  Carpenter  v.  Holcomb,  105  Mass.  284,  and  cases 
cited  in  opinion  by  Colt,  J.  Her  readiness,  like  any  other  fact,  may 
be  shown  by  all  the  circumstances  of  the  case.  It  sufficiently  appeared 
by  the  conduct  of  the  parties. 

[After  the  defendant  had  declined  to  give  her  employment,  there  was 
no  further  duty  on  the  plaintiff's  part  to  be  in  readiness  to  perform.  If 
that  readiness  existed  when  the  time  to  enter  into  service  commenced, 
and  the  defendant  committed  a  default  on  his  part,  the  contract  was 
broken  and  she  had  a  complete  cause  of  action.  Tender  of  perform- 
ance is  not  necessary  when  there  is  a  willingness  and  ability  to  perform, 
and  actual  performance  has  been  prevented  or  expressly  waived  by  the 
parties  to  whom  performance  is  due.i  Franchot  v.  Leach,  5  Cow.  506 ; 
Cort  V.  Ambergate  &  R.  R.  Co.,  17  A.  &  E.  (N.  S.)  127.  This  rule 
is  recognized  in  Nelson  v.  Plimpton  Fireproof  E.  Co.,  55  N.  Y.  480, 
484.  Her  future  conduct  could  not  affect  her  right  to  sue,  though  it 
might  bear  on  the  question  of  damages.  She  was  not  obliged  to  re- 
main in  New  York  or  in  any  form  to  tender  her  services  after  they 
had  been  once  definitely  rejected. 

If  this  theory  of  the  plaintiff's  case  is  correct,  her  only  further  duty 
was  to  use  reasonable  care  in  entering  into  other  employment  of  the 
same  kind,  and  thus  reduce  the  damages.    This  obligation  is  of  a  gen- 


Ch.  1)  SINGLENESS    OF    RECOVERY. 


;i5 


eral  nature,  and  not  peculiarly  applicable  to  contracts  of  service.  The 
cases  on  this  point  are :  Emmons  v.  Elderton,  4  H.  L.  Cas.  646 ;  Cos- 
tigan  V.  Mohawk  &  H.  R.  R.  Co.,  2  Denio,  609,  43  Am.  Dec.  758 ;  Dil- 
lon V.  Anderson,  43  N.  Y.  231;  Hamilton  v.  McPherson,  28  N.  Y. 
76,  84  Am.  Dec.  330.  The  uncontradicted  testimony  was,  that  this 
duty  was  discharged  by  the  plaintiff.  She  made  effort  to  procure  em- 
ployment, but  failed.  While  it  would  be  unquestionably  her  duty 
to  accept,  if  offered,  another  eligible  theatrical  engagement,  it  could 
scarcely  be  expected  that  she  should  spend  much  time  in  actively  seek- 
ing for  employment.  Having  made  some  effort  and  having  failed,  I 
think  that  she  was  justified,  under  the  known  usage  in  that  business  of 
forming  companies  of  actors  at  certain  seasons  of  the  year,  and  the 
slight  prospect  of  success  in  making  an  engagement  after  the  fifteenth 
of  September,  in  awaiting  the  close  of  the  theatrical  season.  How 
far  a  person  who  is  wrongfully  discharged  from  employment  is  bound 
to  seek  it  is  not,  perhaps,  fully  settled.  Chamberlin  v.  Morgan,  68 
Pa.  168;  King  v.  Steiren,  44  Pa.  99,  84  Am.  Dec.  419.  In  the  first 
of  these  cases  it  is  said  that  it  is  the  duty  of  a  dismissed  servant  not 
to  remain  idle,  and  that  the  defendant  may  show,  in  mitigation  of  dam- 
ages, that  the  plaintiff  might  have  procured  employment.  This  seems 
to  be  a  reasonable  rule.  Prima  facie,  the  plaintiff  is  damaged  to  the 
extent  of  the  amount  stipulated  to  be  paid.  The  burden  of  proof  is 
on  the  defendant  to  show  either  that  the  plaintiff  has  found  employ- 
ment elsewhere,  or  that  other  similar  employment  has  been  offered  and 
declined,  or,  at  least,  that  such  employment  might  have  been  found. 

1  do  not  think  that  the  plaintiff  is  bound  to  show  affirmatively,  as  a 
part  of  her  case,  that  such  employment  was  sought  for  and  could  not 
be  found.    2  Greenl.  on  Ev.  §  261,  a;  Costigan  v.  M.  &  PI.  R.  R.  Co., 

2  Denio,  609,  43  Am.  Dec.  758. 

( No  such  evidence  having  been  offered  by  the  defendant,  the  plaintiff 
should  recover  the  whole  amount  of  her  stipulated  compensation  as  the 
damages  attributable  to  the  defendant's  breach  of  contract.  This,  as 
has  been  seen,  is  the  true  measure  of  damages!     *     *     * 

As  far  as  any  authorities  are  opposed  to  the  theory  maintained  in  the 
present  case,  they  will  appear  to  rest  on  the  nisi  prius  case  of  Gandell 
v.  Pontigny,  already  noticed.  Thus  in  Thompson  v.  Wood,  1  Hilt. 
96,  there  is  a  dictum  of  Ingraham,  J.,  that  a  servant  wrongfully  dis- 
charged has  his  election  to  sue  for  wages  as  they  become  due  from 
time  to  time,  or  for  damages.  This  remark  that  he  could  sue  for  wages 
evidently  proceeds  on  the  discarded  doctrine  of  "constructive  service." 
In  Huntington  v.  Ogdensburgh,  etc.,  R.  R.  Co.,  33  How.  Prac.  416, 
there  are  some  remarks  of  a  similar  nature  by  Potter,  J.,  though  there 
is  an  apparent  confusion  between  a  claim  for  wages,  in  case  the  con- 
tract is  carried  out,  and  for  damages,  in  case  it  is  broken  off.  The 
opinion  of  James,  J.,  as  reported  in  this  case  in  7  American  Law  Regis- 
ter (N.  S.)  143,  appears  to  be  distinct  in  its  adoption  of  the  doctrine 
of  constructive  service.     It  relics  on  a  case   in  Alabama   (Fowler  v. 


316  COMPENSATORY  DAMAGES.  (Part   5 

Armour,  24  Ala.  191),  which  distinctly  holds  that  doctrine,  and  on  the 
dictum  of  Ingraham,  J.,  in  Thompson  v.  Wood,  supra.  There  are  two 
or  three  other  cases  in  the  Southern  and  Western  states  that  have 
followed  Gandell  v.  Pontigny:  Armfield  v.  Nash,  31  Miss.  361;  Gor- 
don V.  Brewster,  7  Wis.  355 ;  Booge  v.  Pacific  R.  R.  Co.,  33  Mo.  212, 
82  Am.  Dec.  160. 

This  doctrine  is,  however,  so  opposed  to  principle,  so  clearly  hostile 
to  the  great  mass  of  the  authorities,  and  so  wholly  irreconcilable  to  that 
great  and  beneficent  rule  of  law,  that  a  person  discharged  from  serv- 
ice must  not  remain  idle,  but  must  accept  employment  elsewhere  if 
offered,  that  we  cannot  accept  it.  If  a  person  discharged  from  service 
may  recover  wages,  or  treat  the  contract  as  still  subsisting,  then  he 
must  remain  idle  in  order  to  be  always  ready  to  perform  the  service. 
How  absurd  it  would  be  that  one  rule  of  law  should  call  upon  him  to 
accept  other  employment,  while  another  rule  required  him  to  remain 
idle  in  order  that  he  may  recover  full  wages.  The  doctrine  of  "con- 
structive service"  is  not  only  at  war  with  principle,  but  with  the  rules 
of  political  economy  as  it  encourages  idleness  and  gives  compensation 
to  men  who  fold  their  arms  and  decline  service,  equal  to  those  who 
perform  with  willing  hands  their  stipulated  amount  of  labor.  Though 
the  master  has  committed  a  wrong,  the  servant  is  not  for  one  moment 
released  from  the  rule  that  he  should  labor;  and  no  rule  can  be  sound 
which  gives  him  full  wages  while  living  in  voluntary  idleness.  For 
these  reasons,  if  the  plaintiff  was  discharged  after  the  time  of  service 
commenced,  she  had  an  immediate  cause  of  action  for  damages,  which 
were  prima  facie  a  sum  equal  to  the  stipulated  amount,  unless  the  de- 
fendant should  give  evidence  in  migitation  of  damages. 

The  next  inquiry  is  as  to  the  rule  to  be  followed  in  case  the  defend- 
ant's denial  of  the  contract  preceded  the  time  for  entering  into  the 
service.  /It  is  now  a  well  settled  rule  that  if  a  person  enters  into  a 
contract  ^or  service,  to  commence  at  a  future  day,  and  before  that  day 
arrives  does  an  act  inconsistent  with  the  continuance  of  the  contract,  an 
action  may  be  immediately  brought  by  the  other  party ;  and  of  course, 
without  averring  performance,  or  readiness  to  perform.  The  leading 
cases  on  that  subject  are  Hochster  v.  De  La  Tour,  2  "Ellis  &  Black. 
678;  Frost  v.  Knight,  Law  Rep.  7  Exch.  Ill,  reversing  s.  c.  in  L. 
R.  5  Exch.  322;  Roper  v.  Johnson,  Law  Rep.  8  Com.  Pleas,  167; 
Burtis  v.  Thompson,  42  N.  Y.  246,  1  Am.  Rep.  516;  Crist  v.  Armour, 
34  Barb.  378. 

In  Hochster  v.  De  La  Tour  the  facts  were,  that  the  plaintiff  had 
agreed  to  enter  the  service  of  the  defendant  as  a  courier,  on  June  1, 
1852,  and  to  serve  in  that  capacity  for  three  months,  from  the  1st  of 
June,  at  a  specified  monthly  salary.  Before  that  day  arrived,  the  de- 
fendant wholly  refused  to  employ  the  plaintiff  in  the  capacity  afore- 
said, and  wholly  discharged  him  from  the  agreement.  The  action  was 
commenced  on  June  22,  1852.  The  court  held  that  the  action  was  well 
brought,  on  the  ground  that  it  was  an  act  done  inconsistent  with  the 


Ch.  1)  SINGLENESS    OF    RECOVERY. 


317 


relation  of  master  and  servant,  and,  accordingly,  not  so  much  a  breach 
of  the  express  agreement,  as  of  an  implied  contract,  in  no  way  to  do 
any  thing  to  the  prejudice  of  the  opposite  party,  inconsistent  with  that 
relation. 

Another  form  of  statement  is,  that  the  party  renouncing  his  en- 
gagement cannot  complain  if  the  opposite  party  takes  him  at  his  word, 
and  treats  him  as  having  broken  the  contract.  This  doctrine  results 
in  the  rule,  that  the  opposite  party  has  an  option  either  to  treat  the 
contract  as  subsisting,  and  when  the  day  arrives  for  commencing  to 
ser^'e  to  offer  to  perform,  or  to  regard  it  as  immediately  broken,  and  to 
sue  before  the  day  arrives.  This  theory  of  an  option  is  not  objection- 
able, since,  before  the  day  for  performance  arrives,  a  party  would  not 
be  bound  to  accept  other  employment,  if  offered,  as  he  would  be  if  the 
contract  were  broken  off  after  that  time.  The  principle  that  gov- 
erns the  one  case  is  plainly  not  applicable  to  the  other. 

This  case,  at  first,  met  with  doubt,  and  even  adverse  criticism.  It 
was  powerfully  assailed  by  Chief  Baron  Kelly,  of  the  Court  of  Ex- 
chequer, in  Frost  v.  Knight,  L.  R.  5  Exch.  322.  His  arguments  were 
carefully  considered  on  an  appeal  of  that  case  to  the  Court  of  Ex- 
chequer Chamber,  where  the  doctrine  of  Hochster  v.  De  La  Tour  was 
fully  confirmed,  and  it  is  now  accepted  law.  S.  c,  L.  R.  7  Exch.  111. 
Other  cases  to  the  same  effect  are  Danube  &  Black  Sea  Co.  v.  Xenos, 
13  C.  B.  (N.  S.)  825,  and  Wilkinson  v.  Verity,  L.  R.  6  C.  P.  206.  The 
result  of  the  cases  is  stated  by  Cockburn,  C.  J.,  in  Frost  v.  Knight,  in 
the  Exchequer  Chamber,  in  the  following  terms : 

"The  law  with  reference  to  a  contract  to  be  performed  at  a  future 
time,  where  the  party  bound  to  the  performance  announces,  prior  to 
the  time,  his  intention  not  to  perform  it,  as  established  by  the  cases 
[citing  them],  may  be  thus  stated:  The  promisee,  if  he  pleases,  may 
treat  the  notice  of  intention  as  inoperative,  and  await  the  time  when 
the  contract  is  to  be  executed,  and  then  hold  the  other  party  responsi- 
ble for  all  the  consequences  of  non-performance;  but  in  that  case  he 
keeps  the  contract  alive,  for  the  benefit  of  the  other  party  as  well  as 
his  own;  he  remains  subject  to  all  his  own  obligations  and  liabilities 
under  it,  and  enables  the  other  party  not  only  to  complete  the  con- 
tract, if  so  advised,  notwithstanding  his  previous  repudiation  of  it, 
but  also  to  take  advantage  of  any  supervening  circumstance  which 
would  justify  him  in  declining  to  complete  it. 

"On  the  other  hand,  the  promisee  may,  if  he  thinks  proper,  treat 
the  repudiation  of  the  other  party  as  a  wrongful  putting  an  end  to  the 
contract,  and  may  at  once  bring  his  action  as  on  a  breach  of  it;  and 
in  such  action  he  will  be  entitled  to  such  damages  as  would  have  arisen 
from  the  non-performance  of  the  contract  at  the  appointed  time ;  sub- 
ject, however,  to  abatement  in  respect  of  any  circumstances  which  may 
have  afforded  him  the  means  of  mitigating  his  loss. 

"This  is  not  settled  law,  notwithstanding  any  thing  that  may  have 


318  COMPENSATORY  DAMAGES.  (Part    5 

been  held  or  said  in  Philpotts  v.  Evans,  5  M.  &  W.  475,  and  Ripley  v. 
McCIure,  4  Exch.  359."    Pages  112,  113. 

This  principle  was  recognized  in  the  very  recent  case  of  Roper  v. 
Johnson,  L.  R.  8  C.  P.  167,  where  the  further  rule  was  laid  down,  as 
a  deduction  from  the  decisions  above  stated,  that  in  case  the  plaintiff 
elected  to  treat  the  contract  (for  the  delivery  of  coal)  as  broken,  by  the 
refusal  of  the  defendant  to  perform  prior  to  the  days  designated  for  de- 
livery, the  measure  of  damages  was  prima  facie  the  difference  between 
the  contract  price  and  the  market  price  at  the  several  periods  fixed  for 
delivery,  notwithstanding  those  periods  had  not  all  elapsed  when  the 
action  was  brought,  nor  even  when  it  was  tried.  The  damages  could 
be  mitigated  by  proof  that  the  plaintiff  could  have  procured  the  coal 
at  lower  rates.  As  no  such  proof  was  offered,  the  full  difference  be- 
tween the  two  rates  was  recovered.  There  is  also  a  dictum  in  Brown 
V.  Muller,  L.  R.  7  Exch.  323,  to  the  same  effect. 

The  question  now  under  consideration  was  discussed  in  Crist  v.  Ar- 
mour, 34  Barb.  378,  and  the  case  of  Hochster  v.  De  La  Tour  approved. 
The  facts  in  Crist  v.  Armour  did  not  involve  the  precise  point  in  the  case 
at  bar,  since  the  vendor,  who  had  contracted  to  sell  a  quantity  of  cheese 
at  a  specified  day,  sold  it  to  another  before  that  day  arrived,  and  put 
it  out  of  his  power  to  perform  the  contract.  The  principle  is  substan- 
tially the  same,  hovvever,  as  that  adopted  in  the  English  cases.  No 
appreciable  distinction  can  be  stated  between  the  present  case  and 
that  of  Burtis  v.  Thompson,  42  N.  Y.  246,  1  Am.  Rep.  516.  In  that 
case  there  was  an  engagement  to  marry  "in  the  fall."  The  defendant 
announced  to  the  plaintiff,  in  October,  that  he  would  not  perform  his 
contract.  It  was  held  that  an  action  commenced  immediately  was  not 
premature.  The  opinions  given  by  Ingalls,  J.,  and  Grover,  J.,  do  not 
proceed  on  the  same  theory.  The  view  of  the  latter  judge  coincides, 
in  substance,  with  that  of  Hochster  v.  De  La  Tour,  and  is  the  only 
one  on  which  the  judgment  can  properly  be  supported.  The  fair  con- 
struction of  the  words  "in  the  fall,"  would  have  given  the  defendant 
until  the  last  day  of  November  to  perform  had  there  been  no  refusal 
on  his  part.  It  was  the  renunciation  of  his  contract  in  October  which 
made  the  action  not  premature.  If  the  case  is  good  law,  it  is  difficult 
to  maintain  any  distinction  between  it  and  the  contract  of  service. 
Chief  Baron  Kelly,  in  Frost  v.  Knight,  supra,  attempted  to  draw  a 
distinction  between  the  contract  of  marriage  and  the  other  contracts. 
This  was  discarded  by  the  Court  of  Exchequer  Chamber,  which  held 
the  rule  in  Hochster  v.  De  La  Tour  to  be  universal  in  its  application 
to  contracts  to  be  performed  at  a  future  day;  though  I  presume  that 
it  would  scarcely  be  extended  to  mere  promises  to  pay  money,  or  other 
cases  of  that  nature,  where  there  are  no  mutual  stipulations. 

The  whole  result  of  the  discussion  may  now  be  summed  up.  If  the 
defendant  in  the  case  at  bar  repudiated  his  contract  with  the  plaintiff 
after  the  time  of  performance  had  arrived,  the  plaintiff  had  an  action 
for  damages.     Her  interview  with  the  defendant  sufficiently  showed 


Ch.  1)  SINGLENESS    OF    RECOVERT.  319 

her  readiness  to  perform.  Her  action  was  for  damages  for  not  be- 
ing permitted  to  work,  and  not  for  wages;  and  the  defendant  might 
show  affirmatively,  and  by  way  of  mitigation  of  damages,  that  she  had 
opportunities  to  make  a  theatrical  engagement  elsewhere,  which  she 
did  not  accept.  Without  such  proof  she  was  entitled  to  recover  the 
full  amount  of  the  compensation  stipulated  in  the  contract.     *     *     *  ^^ 

^  ^^C  - 


FAIL  &  IMILES  V.  McREE. 

(Supreme  Court  of  Alabama,  1860.     36  Ala.  61.) 

McRee  agreed  to  let  Fail  &  Miles  cut  all  the  pine  timber  on  his  land, 
they  agreeing  to  saw  and  sell  all  lumber  as  soon  as  possible  and  to 
pay  McRee  one  fifth  of  the  gross  proceeds.  McRee  alleged  a  breach 
of  the  entire  agreement,  and  sued  to  recover  damages  therefor. 

Walker,  C.  J.^®  *  *  *  For  the  breach  of  such  a  contract,  but 
one  action  lies,  and  the  plaintiff  must  recover  in  a  single  action  his 
entire  damages.  Ramey  v.  Holcombe,  21  Ala.  567;  Snedicor  v.  Davis, 
17  Ala.  472;  Sedgwick  on  the  Measure  of  Damages,  22-i.  Notwith- 
standing the  period  of  performance  had  not  expired  at  the  time  of  the 
breach  of  the  contract,  and  at  the  time  of  action  brought,  the  plaintift 
must  recover  in  the  single  action  the  damages  which  would  result  from 
the  continued  and  prospective  failure  of  performance,  for  he  cannot 
bring  a  second  action.  Perhaps,  if  the  time  within  which  the  contract 
might  have  been  perfonned  had  elapsed  before  the  trial,  and  the 
amount  of  performance  which  would  have  transpired  each  year  could 
have  been  ascertained,  the  value  of  the  timber  and  lumber  which  would 
have  been  consumed  and  sold  each  year,  estimated  as  of  that  year, 
would  have  been  adopted  in  determining  the  damages;^  and  thus  in- 
jury to  either  party  from  fluctuation  in  value  would  have  been  avoided. 
But,  as  this  case  is  not  shown  to  have  presented  such  features,  the 
damages  ought  to  be  assessed  upon  the  basis  of  value  at  the  time  of  the 
breach.     *     *     * 

15  stone.  J.,  in  Liddell  v.  Chidester,  S4  Ala.  508,  4  South.  420,  5  Am.  St. 
Rep.  387  (1887): 

"When  Chidester  was  discharged,  he  had  the  option  of  one  of  three  remedies 
if  the  discharge  was  wrongful:  (1)  He  could  have  elected  to  treat  the  con- 
tract as  rescinded,  and  sue  on  a  quantum  meruit  for  any  labor  he  may  have 
performed;  (2)  he  could  have  sued  at  once  for  an  entire  breach  of  the  con- 
tract by  the  defendant,  in  which  event  he  would  have  been  entitled  to  recover 
all  damages  he  suffered  up  to  the  trial,  not  exceeding  the  entire  wages  he 
could  have  earned  under  the  contract ;  or  (3)  he  could  have  waited  until  his 
wages  would  mature  under  the  terms  of  the  contract,  and  sue  and  recover  as 
upon  performance  on  his  part.  *  *  ♦  And,  when  wages  are  payable  in 
installments,  suits  may  be  brought  on  the  several  installments  as  they  mature." 

i«  Part  of  the  opinion  is  omitted,  and  the  statement  of  facts  is  rewritten. 


820  COMPENSATORY  DAMAGES.  (Part   6 

ROPER  et  al.  v.  JOHNSON. 
(Court  of  Common  Pleas,  1873.     L.  R.  8  C.  P.  167.) 

The  defendant  in  April  agreed  to  deliver  coal  to  the  plaintiffs,  in 
certain  specified  installments,  in  May,  June,  July,  and  August,  1872, 
but  shortly  afterwards  stated  his  determination  not  to  perform  the 
contract.  The  repudiation  was  accepted  as  such  by  the  plaintiffs  on 
July  3d,  when  they  brought  this  action  for  damages  as  for  a  breach  of 
the  entire  contract.* 

Brett,  J.  This  is  an  action  brought  upon  a  contract  for  the  pur- 
chase and  sale  of  marketable  goods,  whereby  the  defendant  undertook 
to  deliver  them  in  certain  quantities  at  certain  specified  times ;  and  the 
action  is  brought  for  the  nonperformance  of  that  contract.  Now,  in 
ordinary  cases,  the  contract  is  to  deliver  the  goods  on  a  specified  day, 
and  there  is  no  breach  until  that  day  has  passed.  In  the  case  of  market- 
able goods,  the  rule  as  to  damages  for  breach  of  the  contract  to  deliver 
is,  the  difference  between  the  contract  price,  and  the  market  price  on  the 
day  of  the  breach.  That  is  perfectly  right  when  the  day  for  perform- 
ance and  the  day  of  breach  are  the  same.  Another  form  of  contract 
is,  as  in  Brown  v.  Muller,  Law  Rep.  7  Ex.  319,  to  deliver  goods  in  cer- 
tain quantities  on  different  days.  The  effect  of  the  judgment  in  that 
case  is  that,  the  contract  being  wholly  unperformed,  there  is  a  breach 
— a  partial  breach — on  each  of  the  specified  days ;  such  breaches  occur- 
ring on  the  same  days  as  the  days  appointed  for  the  performance  of  the 
several  portions  of  the  contract.  But  the  case  of  Hochster  v.  De  la 
Tour,  2  E.  &  B.  678,  22  L.  J.  (Q.  B.)  455,  introduced  this  qualification, 
that,  where  one  party,  before  the  day  for  the  performance  of  the  con- 
tract has  arrived,  declares  that  he  will  not  perform  it,  the  other  may 
treat  that  as  breach.  That  complication  has  arisen  here :  the  contract 
being  for  the  delivery  of  the  goods  on  future  specified  days,  the  de- 
fendant has  before  the  time  appointed  for  the  last  delivery  declared 
that  he  will  not  perform  the  contract,  and  the  plaintiffs  have  elected 
to  treat  that  as  a  breach  and  to  bring  their  action. 

Now,  to  entitle  a  plaintiff  to  recover  damages  in  an  action  upon  a 
contract,  he  must  shew  a  breach  and  that  he  has  sustained  damage  by 
reason  of  that  breach.  These  two  are  quite  distinct.  All  that  Hochs- 
ter V.  De  la  Tour,  2  E.  &  B.  678,  22  L.  J.  (Q.  B.)  455,  decided  was 
this,  that,  if  before  the  day  stipulated  for  performance,  the  defendant 
declares  that  he  will  not  perform  it,  the  plaintiff  may  treat  that  dec- 
laration as  a  breach  of  the  contract,  and  sue  for  it.  Now  comes  the 
question  whether  in  such  a  case  as  this  there  is  to  be  a  different  rule 
as  to  proof  of  the  amount  of  damage  which  the  plaintiff  has  suffered. 
The  general  rule  as  to  damages  for  the  breach  of  a  contract  is,  that 
the  plaintiff  is  to  be  compensated  for  the  difference  of  his  position  from 
what  it  would  have  been  if  the  contract  had  been  performed..    In  the 

*The  statement  of  facts  is  rewritten. 


Ch.  ])  SINGLENESS    OF    RECOVERY.  321 

ordinary  case  of  a  contract  to  deliver  marketable  goods  on  a  given  day, 
the  measure  of  damages  would  be  the  difference  between  the  con- 
tract price  and  the  market  price  on  that  day.'  Now,  although  the  plain- 
tiff may  treat  the  refusal  of  the  defendant  to  accept  or  to  deliver  the 
goods  before  the  day  for  performance  as  a  breach,  it  by  no  means  fol- 
lows that  the  damages  are  to  be  the  difference  between  the  contract 
price  and  the  market  price  on  the  day  of  the  breach.  It  appears  to 
me  that  what  is  laid  down  by  Cockburn,  C.  J,,  in  Frost  v.  Knight,  in 
the  Exchequer  Chamber,  Law  Rep.  7  Ex.  111,.'  involves_the  very  dis- 
tinction which  I  am  endeavoring  to  lay  down,  viz.  that  the  election  to 
take  advantage  of  the  repudiation  of  the  contract  goes  only  to  the 
question  of  breach,  and  not  to  the  question  of  damages ;  and  that, 
when  you  come  to  estimate  the  damages,  it  must  be  by  the  difference 
between  the  contract  price  and  the  market  price  at  the  day  or  days 
appointed  for  performance,  and  not  at  the  time  of  breachj)  Now,  how 
does  the  Chief  Justice  deal  with  the  matter?  He  deals  first  with  the 
case  of  an  action  brought  after  the  day  for  performance.  He  says : 
"The  promisee,  if  he  pleases,  may  treat  the  notice  of  intention  as  in- 
operative, and  await  the  time  when  the  contract  is  to  be  executed,  and 
then  hold  the  other  party  responsible  for  all  the  consequences  of  non- 
performance ;  but,  in  that  case,  he  keeps  the  contract  alive  for  the 
benefit  of  the  other  party  as  well  as  his  own;  he  remains  subject  to 
all  his  own  obligations  and  liabilities  under  it,  and  enables  the  other 
party  not  only  to  complete  the  contract,  if  so  advised,  notwithstanding 
his  previous  repudiation  of  it,  but  also  to  take  advantage  of  any  su- 
pervening circumstance  which  would  justify  him  in  declining  to  com- 
plete it."  He  then  treats  of  the  other  case :  "On  the  other  hand,  the 
promisee  may,  if  he  thinks  proper,  treat  the  repudiation  of  the  other 
party  as  a  wrongful  putting  an  end  to  the  contract,  and  may  at  once 
bring  his  action  as  on  a  breach  of  it;  and  in  such  action  he  will  be  en- 
titled to  such  damages  as  would  have  arisen  from  the  nonperformance 
of  the  contract  at  the  appointed  time" — that  is,  from  nonperformance, 
of  the  contract  at  the  time  or  times  appointed  for  its  performance. 
That  clearly  negatives  Mr.  Herschell's  argument,  and  gives  the  rule' 
for  the  assessment  of  damages  in  the  way  I  have  stated,  viz.,  that  they 
must  be  such  as  the  plaintiffs  would  have  sustained  at  the  day  appoint- 
ed for  performance  of  the  contract.  Then  he  goes  on  and  shews  the 
real  distinction  between  the  cases  he  has  put:  "Subject,  however,  to 
abatement  in  respect  of  any  circumstances  which  may  have  afforded 
him  the  means  of  mitigating  his  loss."  He  says  further :  "The  con- 
tract having  been  thus  broken  by  the  promisor,  and  treated  as  broken 
by  the  promisee,  performance  at  the  appointed  time  becomes  excluded, 
and  the  breach  by  reason  of  the  future  nonperformance  becomes  vir- 
tually involved  in  the  action  as  one  of  the  consequences  of  the  re- 
pudiation of  the  contract ;  and  the  eventual  nonperformance  may 
therefore,  by  anticipation,  be  treated  as  a  cause  of  action,  and  dam- 
Gilb.Dam.— 21 


322  COMPENSATORY  DAMAGES.  (Part    5 

ages  be  assessed  and  recovered  in  respect  of  it,  though  the  time  for 
performance  may  yet  be  remote.  It  is  obvious  that  such  a  course  must 
lead  to  the  convenience  of  both  parties ;  and,  though  we  should  be  un- 
willing to  found  our  opinion  on  grounds  of  convenience  alone,  yet  the 
latter  tend  strongly  to  support  the  view  that  such  an  action  ought  to 
be  admitted  and  upheld.  By  acting  on  such  a  notice  of  the  intention 
of  the  promisor,  and  taking  timely  measures,  the  promisee  may  in 
many  cases  avert,  or  at  all  events  materially  lessen,  the  injurious  ef- 
fects which  would  otherwise  flow  from  the  nonfulfillment  of  the  con- 
tract; and,  in  assessing  the  damages  for  breach  of  performance,  a 
jury  will  of  course  take  into  account  whatever  the  plaintiff  has  done, 
or  has  had  the  means  of  doing,  and,  as  a  prudent  man,  ought  in  rea- 
son to  have  done,  whereby  his  loss  has  been  or  would  have  been  di- 
minished." He  uses  the  very  term  I  used  in  the  course  of  the  argu- 
ment, and  which  Mr.  Herschell  objected  to,  viz.  "ought  to  have  done." 
It  seems  to  me  to  follow  from  that  ruhng  that  the  plaintiffs  here  did 
all  they  were  bound  to  do  when  they  proved  what  was  the  difference 
between  the  contract  price  and  the  market  price  at  the  several  days 
specified  for  the  performance  of  the  contract,  and  that  prima  facie  that 
is  the  proper  measure  of  damages ;  leaving  it  to  the  defendant  to  shew 
circumstances  which  would  entitle  him  to  a  mitigation.  No  such  cir- 
cumstances appeared  here :  there  was  nothing  to  shew  that  the  plain- 
tiffs ought  to  have  or  could  have  gone  into  the  market — a  rising  mar- 
ket— and  obtained  a  similar  contract.  But  I  cannot  help  thinking  that 
the  Chief  Justice's  judgment  in  the  case  last  referred  to  goes  fur- 
ther, and  says  in  effect  that  the  plaintiffs  were  not  bound  to  attempt  to 
get  a  new  contract.  It  was  upon  precisely  the  same  argument  that 
the  Chief  Baron  in  Brown  v.  Aluller,  Law  Rep.  7  Ex.  319,  decided 
against  Mr.  Herschell  that  the  plaintiff  there,  as  a  reasonable  man, 
was  not  bound  to  make  a  forward  contract.  Baron  Martin  held  the 
same,  though  apparently  with  some  reluctance;  but  no  doubt  is  ex- 
pressed in  the  judgment  of  Baron  Channell.  If  we  had  been  alto- 
gether without  authority,  I  should  have  come  to  the  same  conclusion. 
But  I  think  we  are  bound  by  the  authority  of  Frost  v.  Knight,  Law 
Rep.  7  Ex.  Ill,  and  Brown  v.  Muller,  Law  Rep.  7  Ex.  319. ^^ 

17  The  opinion  of  Grove,  J.,  is  here  omitted. 

Accord:  Barningham  v.  Smith,  31  Law  T.  540  (1874);  Tyers  v.  R.  &  F.  I. 
Co.,  L.  R.  8  Exch.  305  (1873). 

See,  however.  Rice  v.  Glass  Co.,  88  111.  App.  407  (1899);  Long  v.  Conlilin, 
75  111.  32  (1874).     And  see  article  in  14  Harv.  Law  Rev.  428. 

In  Brown  v.  Muller,  L.  R.  7  Exch.  319  (1872),  the  defendant  agreed  to  de- 
liver to  plaintiff  500  tons  of  iron  during  the  months  of  September,  October, 
and  November,  1871,  at  the  rate  of  166  tons  per  month.  He  delivered  none, 
and  gave  notice  in  August,  1871,  that  he  did  not  intend  to.  In  December 
the  plaintiff  commenced  an  action  for  non-delivery,  and  claimed  as  damages 
the  difference  on  November  30th  between  the  contract  and  market  prices  of 
the  iron.  The  court  stated  that  the  plaintiff  could  have  treated  the  contract 
as  at  an  end  in  August,  and  could  then  have  sued  and  have  recovered  damages 
for  a  total  breach ;  the  amount  being  estimated  (as  was  done  in  the  suit 
actually  brought)  with  reference  to  the  times  when  the  contract  ought  to  have 


Ch.  1)  SINGLENESS    OF    RECOVERT.  V 


MASTERTON  v.  MAYOR  OF  BROOKLYN. 

(Supreme  Court  of  New  York,  1845.     7  Hill,  61,  42  Am.  Dec.  38.) 
See  ante,  p.  241,  for  a  report  of  the  case. 


ROEHM  V.  HORST. 

(Supreme  Court  of  United  States,  1900.     178  U.  S.  1,  20  Sup.  Ct.  780,  44  L. 

Ed.  953.) 

On  August  25,  1893,  plaintiff  agreed  to  sell  and  defendant  agreed 
to  purchase,  under  four  contracts,  400  bales  of  hops,  of  the  crops  of 
1896  and  1897,  to  be  delivered  in  installments  from  October,  1896,  to 
July,  1898 ;  the  first,  for  100  bales,  covering  the  period  from  October, 
1896,  to  March,  1897.  Defendant,  on  October  24,  1896,  repudiated 
all  liability. 

Fuller,  C.  J.^*  *  *  *  The  first  contract  falls  within  the  rule 
that  a  contract  may  be  broken  by  the  renunciation  of  liability  under  it 
in  the  course  of  performance  and  suit  may  be  immediately  instituted. 
But  the  other  three  contracts  involve  the  question  whether,  where 
the  contract  is  renounced  before  performance  is  due,  and  the  renuncia- 
tion goes  to  the  whole  contract,  and  is  absolute  and  unequivocal,  the 
injured  party  may  treat  the  breach  as  complete  and  bring  his  action 
at  once.  Defendant  repudiated  all  liability  for  hops  of  the  crop  of  1896 
and  of  the  crop  of  1897,  and  notified  plaintiffs  that  he  should  make 
(according  to  a  letter  of  his  attorney  in  the  record  that  he  had  made) 
arrangements  to  purchase  his  stock  of  other  parties,  whereupon  plain- 
tiffs brought  suit.  The  question  is  therefore  presented,  in  respect  of 
the  three  contracts,  whether  plaintiffs  were  entitled  to  sue  at  once  or 
were  obliged  to  wait  until  the  time  came  for  the  first  month's  delivery 
under  each  of  them. 

It  is  not  disputed  that  if  one  party  to  a  contract  has  destroyed  the 
subject-matter,  or  disabled  himself  so  as  to  make  performance  im- 
possible, his  conduct  is  equivalent  to  a  breach  of  the  contract,  although 
the  time  for  performance  has  not  arrived;  and  also  that  if  a  con- 
tract provides  for  a  series  of  acts,  and  actual  default  is  made  in  the 
performance  of  one  of  them,  accompanied  by  a  refusal  to  perform 
the  rest,  the  other  party  need  not  perform,  but  may  treat  the  refusal 
as  a  breach  of  the  entire  contract,  and  recover  accordingly. 

And  the  doctrine  that  there  may  be  an  anticipatory  breach  of  an  ex- 
ecutory contract  by  an  absolute  refusal  to  perform  it  has  become  the 
settled  law  of  England  as  applied  to  contracts  for  services,  for  mar- 
riage, and  for  the  manufacture  or  sale  of  goods.     *     *     * 

been  performed — i.  e.,  in  September,  October,  and  November,  1871 — upon  the 
quantity  to  be  delivered  under  each  installment. 

IS  Part  of  the  opinion  is  omitted,  and  the  statement  of  facts  is  rewritten. 


324  COMPENSATORY  DAMAGES.  (Part   5 

The  parties  to  a  contract  which  is  wholly  executory  have  a  right 
to  the  maintenance  of  the  contractual  relations  up  to  the  time  for  per- 
formance, as  well  as  to  a  performance  of  the  contract  when  due.  If 
it  appear  that  the  party  who  makes  an  absolute  refusal  intends  there- 
by to  put  an  end  to  the  contract  so  far  as  performance  is  concerned, 
and  that  the  other  party  must  accept  this  position,  why  should  there 
not  be  speedy  action  and  settlement  in  regard  to  the  rights  of  the  par- 
ties? Why  should  a  locus  pcenitentise  be  awarded  to  the  party  whose 
wrongful  action  has  placed  the  other  at  such  disadvantage?  What 
reasonable  distinction  per  se  is  there  between  liability  for  a  refusal  to 
perform  future  acts  to  be  done  under  a  contract  in  course  of  perform- 
ance and  liability  for  a  refusal  to  perform  the  whole  contract  made  be- 
fore the  time  for  commencement  of  performance?     *     *     * 

As  to  the  question  of  damages,  if  the  action  is  not  premature,  the 
rule  is  applicable  that  plaintiff  is  entitled  to  compensation  based,  as  far 
as  possible,  on  the  ascertainment  of  what  he  would  have  suffered  by 
the  continued  breach  of  the  other  party  down  to  the  time  of  complete 
performance,  less  any  abatement  by  reason  of  circumstances  of  which 
he  ought  reasonably  to  have  availed  himself.  If  a  vendor  is  to  manu- 
facture goods,  and  during  the  process  of  manufacture  the  contract 
is  repudiated,  he  is  not  bound  to  complete  the  manufacture,  and  es- 
timate his  damages  by  the  difference  between  the  market  price  and 
the  contract  price,  but  the  measure  of  damage  is  the  difference  be- 
tween the  contract  price  and  the  cost  of  performance.  Hinckley  v. 
Pittsburgh  Bessemer  Steel  Co.,  121  U.  S.  2G4,  7  Sup.  Ct.  875,  30  L. 
Ed.  967.  Even,  if  in  such  cases  the  manufacturer  actually  obtains  his 
profits  before  the  time  fixed  for  performance,  and  recovers  on  a  basis 
of  cost  which  might  have  been  increased  or  diminished  by  subsequent 
events,  the  party  who  broke  the  contract  before  the  time  for  complete 
performance  cannot  complain,  for  he  took  the  risk  involved  in  such 
anticipation.  If  the  vendor  has  to  buy  instead  of  to  manufacture,  the 
same  principle  prevails,  and  he  may  show  what  was  the  value  of  the 
contract  by  showing  for  what  price  he  could  have  made  sub-contracts^ 
just  as  the  cost  of  manufacture  in  the  case  of  a  manufacturer  may  be 
shown.  Although  he  may  receive  his  money  earlier  in  this  way,  and 
may  gain,  or  lose,  by  the  estimation  of  his  damage  in  advance  of  the 
time  for  performance,  still,  as  we  have  seen,  he  has  the  right  to  accept 
the  situation  tendered  him,  and  the  other  party  cannot  complain. 
*     *     *  ^°     Judgment   for   plaintiff   on   all    four   contracts   affirmed. 

19  See,  also,  Kadish  v.  Young,  ante,  p.  225 ;  Bagley  v.  Smith,  ante,  p.  255 ; 
Rogers  v.  Parham,  post,  p.  532;  and  cases  under  the  heading  "Contracts 
Respecting  Services." 


Ch.  1)  LIMITED    INTERESTS.  **-^ 

C£>j  Actions  by  Ozvner  of  Limited  Interest. 
(a)  Personalty. 

CHINERY   V.   VIALL. 
(Court  of  Exchequer,  1860.     5  Mecs.  &  W.  288.) 
The  plaintiff,  having  bought  43  sheep  on  credit,  left  them  with  the 
vendor,  who  wrongfully  sold  them.    The  court  held  that  trover  could 
be  maintained.    The  verdict  was  for  ill8.  19s.,  the  value  of  the  sheep. 
Brxmwell,  B.-''     *     *     *  /But  it  was  further  urged  on  the  part 
of  the  defendant,  that,  supposing  trover  maintainable,  the  damages  re- 
coverable on  either  count  ought  to  be  no  more  than  were  really  sustain- 
ed by  the  plaintiff,  that  is,  the  value  of  the  sheep,  mmus  the  price  he 
would  have  had  to  pay  for  them  if  they  had  been  delivered  to  him; 
and  that  therefore  £5.  would  be  ample  damages,  and  that  a  farthmg 
would  have  been  sufficient.\  Upon  that  point  our  opinion  is  in  favor 
of  the  defendant,  viz.,  that  "the  plaintiff  is  entitled  to  recover  no  more 
than  the  real  damage  he  has  sustained.    In  Lamond  v.  Davall,  9  g.  B. 
(58  E    C    L   R  )   1030,  the  plaintiff  had  sold  shares  to  the  defendant 
which  he'had  not  accepted,  and  the  plaintiff  had  resold  them;   it  was 
held  that  after  that  he  could  not  sue  the  defendant  for  goods  bargained 
and  sold     If  that  is  so,  the  defendant  could  not  maintain  such  an  ac- 
tion in  the  present  case;    and  as  the  vendor  could  not  sue  for  goods 
bargained  and  sold,  the  result  is  that  he  could  not  m  any  form  of  ac- 
tion recover  the  price;   and  it  would  be  singular  if  the  same  act  which 
saved  the  vendee  the  price  of  the  sheep  should  vest  in  him  a  right  of 
action  for  their  full  value  without  deducting  the  price,    ^he  cases  on 
this  subject  are  well  put  together  in  Mayne  on  Damages,  p.  315,  and 
show  that  in  this  action  it  is  not  an  absolute  rule  of  law  that  the  value 
of  the  goods  is  to  be  taken  as  the  measure  of  damage).    There  are  sev- 
eral cases  which  may  be  mentioned  as  illustrative  of  this.     For  in- 
stance  where  a  defendant,  after  having  been  guilty  of  an  act  of  con- 
version, delivers  the  goods  back  to  the  plaintiff,  the  actual  daniage 
sustained,  and  not  the  value,  is  the  measure  of  damages.     So    where 
a  man  has  temporary  possession  of  a  chattel,  the  ownership  being  m 
another,  the  bailee,  no  doubt,  may  maintain  an  action ;   but  only  for 
the  real  damage  sustained  by  him  in  the  deprivation  of  the  possession. 
Other  cases  might  be  cited  to  show  that  there  is  no  such  absolute  rule 
of  law  as  to  the  damages  in  trover  as  that  suggested.     In  Read  v. 
Fairbanks,  13  C.  B.  (76  E.  C.  L.  R.)  692,  an  unfinished  ship  was  taken 
and  then  completed,  and  after  its  completion  converted;    it  was  held 
that  the  plaintiff  was  entitled  to  the  value  at  the  time  when  the  defend- 
ant took  it,  not  at  the  time  when  he  converted  the  completed  ship  to 
his  own  use.    To  the  same  effect  is  the  case  of  Brierly  v.  Kendall,  1 . 

20  Part  of  tlie  oi.iniou  is  omitted,  and  the  stateuieut  of  facts  is  rewritten. 


326  COMPENSATORY  DAMAGES.  (Part   5 

Q.  B.  (79  E.  C.  Iv.  R.)  937;  the  principle  deducible  from  the  authori- 
ties being  that  a  man  cannot  by  merely  changing  the  form  of.  action 
entitle  himself  to  recover  damages  greater  than  the  amount  to  which 
he  is  in  law  entitled,  according  to  the  true  facts  of  the  case  and  the 
real  nature  of  the  transaction.  Here  the  result  is,  that  the  plaintiff 
is  entitled  to  recover  £5.  only. 

It  is  not  to  be  understood  that,  though  in  the  present  case  the  plain- 
tiff cannot  recover  more,  if  a  stranger  had  converted  the  goods  the 
plaintiff  would  not  have  been  entitled,  as  against  him,  to  recover  the 
whole  amount  of  the  value  or  proceeds.  That  might  depend  upon 
whether  the  plaintiff  would  be  liable  to  the  seller  for  the  contract  price  ; 
and  probably  in  such  a  case  he  would,  for  there  the  seller  would  be  in 
no  default;  and  if  he  could  not  deliver  the  goods  owing  to  the  wrong- 
ful act  of  a  third  party,  it  may  be  that  he  could  recover  the  whole 
price,  and  the  vendee  would  be  entitled  to  recover  the  amount  from 
the  stranger.  The  verdict  must  stand  as  found  by  the  jury,  but  be 
reduced  to  £5.^^ 


WHITE  V.  WEBB. 

(Supreme  Court  of  Errors  of  CJonnecticut,  1842.    15  Conn.  302.) 

George  Webb  executed  a  second  chattel  mortgage  on  certain  ma- 
chinery to  plaintiff  and  to  Clark,  who  took  possession  thereof  by  their 
agent.  A  part  was  sold  for  the  reduction  of  the  mortgage  debt,  and 
the  balance  was  taken  by  defendant  as  deputy  sheriff  under  a  writ 
of  attachment  against  Austin  and  Dunham,  in  whom  was  the  legal 
title  by  virtue  of  a  prior  unsatisfied  mortgage  deed,  although  they  had 
never  taken  possession.  Action  in  trespass  and  trover.  Verdict  for 
plaintiff, 

HiNMAN,  J.22  *  *  *  The  plaintiff  was  in  possession  of  the 
property.  He  had  an  interest  in  it,  acquired  by  his  mortgage  deed. 
He  is,  therefore,  entitled  to  the  possession,  and  to  the  property  also, 
against  all  the  world  but  the  real  owner.  The  defendant  was  a  mere 
stranger;  and  surely,  he  cannot  interfere  with  the  plaintiff's  posses- 
sion, nor  with  his  title.     *     *     * 

But  it  is  claimed  by  the  defendant,  and  insisted  upon  in  the  argu- 
ment, that  though  the  plaintiff's  possession  is  sufficient  to  enable  him 
to  sustain  his  suit;  yet  the  damages  must  be  measured  by  the  inter- 
est which  the  plaintiff  has  in  the  property;  and,  therefore,  the  amount 
of  Austin  &  Dunham's  mortgage  ought  to  be  deducted,  and  damages 

■21  For  the  recovery  given  to  the  ovi^ner  of  limited  interests  in  personalty, 
see,  also,  Brierly  v.  Kendall,  17  Q.  B.  937  (1852);  Johnson  v.  Stear,  15  C. 
B.  (N.  S.)  330  (1863);  Turner  v.  Hardcastle,  11  C.  B.  (N.  S.)  683  (1862); 
Matthews  v.  Discount  Corp.,  L.  R,  4  C.  P.  228  (1869) ;  Claridge  v.  S.  S.  Tram- 
wa.v.  1  Q.  B.  Div.  422  (1892). 

22  Part  of  the  opinion  is  omitted,  and  the  statement  of  facts  is  rewritten. 


^  Ch.  1)  LIMITED    INTERESTS.  327 

given,  only  for  the  excess  of  the  vakie  of  the  property  over  that  in- 
cumbrance. (  In  actions  of  trover  and  trespass,  for  property  taken  and 
converted  by  the  defendant,  where  there  is  no  malicious  motive,  on 
the  part  of  the  defendant,  but  he  takes  the  property  under  a  claim  of 
right,  and  the  real  dispute  is,  as  to  the  title,  the  rule  of  damages  is 
the  value  of  the  property,  at  the  time  of  the  conversion  or  taking,  and 
interest  on  that  sum  to  the  time  of  judgment,  i  If,  however,  the  suit 
is  brought  by  a  bailee  or  special-property  man,  against  the  general 
owner,  then  the  plaintiff  can  recover  the  value  of  his  special  property 
only;  but,  if  the  writ  is  against  a  stranger,  then,  he  recovers  the  val- 
ue of  the  property  and  interest,  according  to  the  general  rule ;  and 
holds  the  balance  beyond  his  own  interest,  in  trust  for  the  general  own- 
er. Kennedy  v.  Whitwell  et  al.,  4  Pick.  (Mass.)  466;  Spoor  v.  Hol- 
land et  al.,  8  Wend.  (N.  Y.)  445,  24  Am.  Dec.  37;  Brizsee  et  al.  v. 
Maybee,  21  Wend.  (N.  Y.)  144;  Ingersoll  v.  Van  Bokkelin,  7  Cow. 
(N.  Y.)  670,  681,  and  note.     *     *     *     Affirmed. 


BROADWELL  v.  PARADICE. 

(Supreme  Court  of  Illinois,  1876.    81  111.  474.) 

Paradice  brought  replevin  to  recover  possession  of  certain  personal 
property  upon  which  Broadwell,  as  sheriff,  had  levied  to  satisfy  an 
execution  in  favor  of  one  McGregor.  Paradice  later  dismissed  his 
suit,  and  this  proceeding  is  a  statutory  assessment  of  damages  for  the 
loss  of  the  use  of  the  property  during  the  time  it  was  held  under  the 
writ  of  replevin. 

Sheldon,  J.^'  *  *  *  'j'j^g  evidence  was  undisputed  that  the 
use  of  the  property  was  worth  from  $18  to  $25  per  month.  It  was 
some  22  months  from  the  time  of  taking  the  property  from  the  sher- 
iff up  to  that  of  the  trial  for  the  assessment  of  damages.  The  amount 
of  the  execution  under  which  the  sheriff  had  seized  the  property  was 
$502.20,  which  was  entirely  unsatisfied. 

By  the  seizure  of  the  goods  in  execution,  the  sheriff  acquired  a  spe- 
cial property  in  them,  and  might  have  maintained  an  action  of  tres- 
pass or  trover  against  any  one  who  wrongfully  took  them  away.  Wil- 
braham  v.  Snow,  2  Saund.  47a. 

Had  Paradice  so  taken  the  property — instead  of  as  he  did,  by  a  writ 
of  replevin — he  would  have  been  liable  to  such  an  action  of  trespass 
or  trover,  at  the  suit  of  the  sheriff;  and,  as  Paradice  was  a  stranger, 
the  sheriff  would  have  recovered,  as  damages,  the  full  value  of  the 
property.  The  rule  being  that,  in  trover  or  trespass,  if  the  property 
be  taken  by  a  stranger,  the  whole  value  may  be  recovered  by  the  spe- 
cial property  man,  he  holding  the  balance  beyond  his  own  interest  in 
trust  for  the  general  owner;    but  if  the  suit  be  between  him  and  the 

28  Part  of  the  opinion  is  omitted,  and  the  statement  of  facts  is  rewritten. 


328  COMPENSATORY   DAMAGES.  (Part    5 

general  owner,  the  latter  is  entitled  to  a  deduction  of  the  value  of  his 
interest.  Russell  v.  Butterfield,  21  Wend.  (N.  Y.)  300;  Brovvnell  v. 
Manchester  et  al.,  1  Pick.  (Mass.)  233 ;  White  v.  Webb,  15  Conn.  302 ; 
Faloln  V.  Manning,  35  Mo.  271 ;   Frei  v.  Vogel,  40  Mo.  149. 

Under  this  rule,  the  sheriff  here,  Broadwell,  should  have  been  al- 
lowed to  recover  the  full  value  of  the  use  of  the  property,  although 
he  himself  had  no  beneficial  interest  therein,  and  personally  sustained 
no  damage.  The  statute  contemplates  that  damages  shall  be  given  for 
the  use  of  the  property,  and  does  not  make  reference  to  such  damages 
as  the  defendant  has  sustained;  the  language  of  the  provision  being 
that,  if  the  plaintiff  suffers  a  nonsuit,  "judgment  shall  be  given  for  a 
return  of  the  property,  and  damages  for  the  use  thereof  from  the  time 
it  was  taken  until  a  return  thereof  shall  be  made."  The  defendant 
here  was  the  special  owner  of  the  property,  but  as  against  the  plain- 
tiff, a  mere  stranger,  he  was  to  be  viewed  only  as  owner,  and  as  such, 
was  entitled  to  recover  the  value  of  the  use  of  the  property,  the  same 
as  if  the  entire  ownership  were  vested  in  him. 

It  is  said  that  the  officer  is  not  allowed  to  use  property  which  he 
seizes  on  execution,  nor  is  the  plaintiff  in  execution,  and  therefore,  nei- 
ther of  them  is  entitled  to  any  damages  for  such  use.  It  may  be  that 
they,  nor  either  of  them,  suffer  any  damage  by  deprivation  of  the  use 
of  the  property;  that  the  accruing  interest  on  the  judgment  may  in- 
demnify the  execution  creditor  in  this  respect.  But  the  general  own- 
er does  sustain  damage  on  such  account.  During  the  time  the  prop- 
erty is  taken  and  withheld  from  being  applied  on  the  execution,  he 
loses  the  interest  on  its  value,  which  runs  against  him  in  the  mean- 
time on  the  judgment;  and  as  an  equivalent  for  the  interest,  it  is  right 
that  he  should  have  damages  for  the  use  of  the  property. 

The  recovery  by  the  defendant,  as  before  observed,  is  in  respect  of 
the  entire  interest  in  the  property,  that  of  both  the  special  and  gen- 
eral owner,  and  the  damages  recovered  for  the  use  of  the  property,  if 
not  for  the  benefit  of  the  special  owner,  will  be  for  the  benefit  of  the 
general  owner.  All  that  the  officer  realizes  in  respect  of  the  proper- 
ty, whether  damages  for  its  use,  or  proceeds  of  its  sale,  will  be  ap- 
plied and  held  for  the  benefit  of  the  general  owner.  All  thereof  that 
may  remain  after  satisfying  the  execution  against  him,  will  be  held  in 
trust  for  the  general  owner. 

Under  the  language  of  the  statute,  as  defendant,  appellant  was  en- 
titled to  recover,  as  damages,  the  value  of  the  use  of  the  property. 
We  see  nothing  in  the  circumstance  of  this  defendant  being  but  the 
special  owner  he  was,  which  should  differ  his  case  from  that  of  any 
other  defendant.  Reason,  analogy  to  the  recovery  of  the  special  own- 
er  in   other   cases,   does   not   justify   the   making   of   a    distinction. 


24  See,  further,  Russell  v.  Butterfield,  2l  Wend.  (N.  Y.)  300  (1839) ;  Finn 
V.  W.  R.  R.  Co.,  112  iSIass.  .524,  17  Am.  Rep.  128  (1874) ;  Brewster  v.  Waruer, 
136  Mass.  57,  49  Am.  Rep.  5  (1883). 


Ch.  1)  LIMITED    INTERESTS.  320 

(b)  Realtt. 

SEELY  et  al.  v.  ALDEN. 
(Supreme  Court  of  Pennsylvania,  1869.     61  Pa.  302,  100  Am.  Dec.  642.) 

Plaintiffs  were  owners  of  a  dam  and  water  power,  and  defendants 
were  owners  of  a  tannery  higher  up  the  stream.  The  action  was 
brought  for  an  alleged  permanent  injury  to  plaintiff's  property  by  rea- 
son of  the  throwing  of  tan  bark  into  the  stream,  the  deposit  filling  up 
and  obstructing  plaintiff's  millpond. 

Agnew,  J.-^  *  *  *  Damages  for  injuries  tQ.  property  vary  also 
according  to  the  nature  of  the  claimant's  right.  (.The  owner  of  the 
freehold  may  undoubtedly  recover  for  an  injury  which  permanently 
affects  or  depreciates  his  property;  while  a  tenant  or  one  having  only 
a  possessory  right,  may  recover  for  an  injury  to  his  use  or  enjoymenM 
of  it.  Ripka  v.  Sergeant,  7  W.  &  S.  9 ;  Schnable  v.  Koehler,  4  Casey, 
181 ;  Robb  v.  Mann,  1  Jones,  305 ;  Williams  v.  Esling,  4  Barr,  486. 
The  court  below  erred,  therefore,  in  confining  the  proof  of  damages 
of  the  plaintiffs  to  the  mere  use  of  the  water.  Being  the  owners  of 
the  property,  as  well  as  in  its  actual  possession  and  use,  they  had  a 
right  to  all  the  damages  flowing  directly  from  the  tort  of  the  defend- 
ant. If,  therefore,  a  permanent  injury  was  created  by  the  lodgment 
of  the  tan  bark  in  the  pool  of  their  dam,  which  actually  depreciated  the 
property  in  value  as  a  water  power,  it  must  affect  the  price  or  value  of 
the  land  to  which  it  belonged ;  and  why  should  this  not  be  compensat- 
ed in  damages?  It  is  difficult  to  give  a  good  reason  against  it.  The 
plaintiffs  in  that  case  have  lost  just  so  much  in  the  value  of  their  prop>- 
erty  by  the  illegal  act  of  the  defendant.  Compensation  for  the  dimin- 
ished enjoyment  or  use  of  the  property  for  a  certain  number  of  years, 
is  no  compensation  for  the  diminished  value  of  the  estate  itself.  The 
profit  of  the  land  must  not  be  confounded  with  the  land  itself.  If  the 
land  were  under  lease,  an  injury  which  diminished  its  annual  profit  to 
the  tenant,  and  also  depreciated  the  value  of  the  property  itself,  would 
be  the  subject  of  a  double  action,  in  which  the  tenant  and  the  landlord 
would  each  recover  the  amount  of  his  own  loss./ Of  course  when  an 
owner  claims  in  both  capacities  he  cannot  be  alfewed  a  double  com- 
pensation for  the  same  loss ;  so  that  the  damages  for  use  must  not 
represent  in  any  part  the  damages  for  the  permanent  injurv.  It  is  the 
duty  of  the  court  to  see  that  one  does  not  overlap  the  other.]  *     *     *  ^° 

2  5  Part  of  the  opinion  is  omitted,  and  ttie  statement  of  facts  is  rewritten. 

26  See  the  following  English  cases:  Attersoll  v.  Stevens,  1  Taunt.  183 
(1808) ;  Shadwell  v.  Hutchinson,  3  Car.  &  P.  G15  (1829) ;  Tuclcer  v.  Newman, 
11  Adol.  &  E.  40  (1839) ;  Baxter  v.  Tavlor,  4  Barn.  &  Adol.  72  (IS.^2) ;  Young 
V.  Spencer,  10  Barn.  &  C.  145  (1829) ;  Crouch  v.  L.  &  N.  W.  Ry.  Co.,  2  Car. 
&  K.  789  (1849). 


^  /  --ir  "^^      330  COMPENSATORY  DAMAGES.  (Part  5 

GOODING  V.   SHEA. 

(Supreme  Judicial  Court  of  Massacliusetts,  18G9.     103  Mass.  3G0,  4  Am.  Rep. 

5G3.) 

The  plaintiff  was  third  mortgag-ee  under  a  mortgage  for  $3,000, 
subject  to  two  prior  mortgages  for  $5,000  and  $1,000,  respectively. 
Defendant  entered  the  mortgaged  property  (residences)  and  removed 
water  pipes  and  fixtures  attached  to  the  realty,  while  the  property  was 
still  in  the  possession  of  the  mortgagor,  and  prior  to  any  breach  of  the 
conditions  of  the  mortgages.  The  plaintiff  subsequently  took  an  as- 
signment of  the  second  mortgage,  sold  the  property  under  power  of 
sale  therein,  and  bought  it  in  for  $4,000,  later  conveying  a  part  there- 
of for  $9,400.  The  mortgagor  became  bankrupt,  and  his  assignee  had 
brought  suit  for  the  same  trespass.  The  defendant  contended  that 
the  plaintiff  could  at  most  recover  only  such  sum  as  he  had  lost  on 
his  security,  and  that  if  the  property  were  sufficient,  notwithstanding 
prior  incumbrances,  to  pay  plaintiff  his  whole  debt,  his  recovery  should 
be  but  nominal.  The  lower  court  ruled  that  the  plaintiff  might  recover 
the  full  damages  sustained  by  the  estate,  and  the  defendant  appeals. 

Wells,  J.^^  *  *  *  f^g  mortgagor  might  undoubtedly  maintain 
an  action  of  trespass;  and  damages  for  the  unlawful  removal  of  fix- 
tures would  be  recoverable  in  such  action  by  way  of  aggravation. 
Earle  v.  Hall,  2  Mete.  353.  For  the  removal  of  crops,  or  other  proper- 
ty connected  with  the  land,  which  the  mortgagor  himself  might  have 
removed,  his  right  or  recovery  would  be  exclusive.  Woodward  v. 
Pickett,  8  Gray,  6.17.  jfeut  fixtures  he  could  not  himself  remove, 
against  the  right  of  the  ^mortgagee,  nor  permit  to  be  removed;  nor 
can  he  have  any  right  to  withhold  the  compensation  or  damages  for 
them  from  the  mortgagee,  in  whom  the  legal  title  is.  The  mortgagee 
may  recover  their  value  against  the  rnortgagor  or  any  other  party  who 
may  be  responsible  for  their  removal.  Cole  v.  Stewart,  11  Gush.  181. 
Such  right  to  recover  depends  upon  the  title,  and  not  upon  possession, 
or  the  right  of  present  possession,  of  the  land.  The  right  of  present 
possession  only  affects  the  form  of  action  in  such  case.  Although  the 
mortgagor  in  possession  may  recover,  in  an  action  of  trespass,  for 
the  value  of  fixtures  removed  by  a  stranger  to  the  title,  his  right  to 
their  value  is  subordinate  to  that  of  a  mortgagee,  and  therefore  cannot 
be  set  up  by  the  defendant  to  defeat  a  recovery  for  the  same  by  such 
mortgagee.  The  mortgagor's  right  of  action,  based  upon  his  posses- 
sion, does  not  depend  upon,  nor  necessarily  include,  the  right  to  re- 
cover for  the  aggravation  by  removal  of  fixtures,  Phelps  v.  Morse, 
9  Gray,  207.  The  right  to  recover  the  value  of  the  fixtures  is  separable 
from  that  to  recover  for  "breach  of  the  close."  Bickford  v.  Barnard, 
8  Allen,  314.  It  is  incidental  only  to  the  action  of  trespass.  But,  as 
the  injury  affects  the  estate,  it  may  be  sued  for  directly  by  any  one 

2  7  Part  of  tlie  opinion  is  omitted,  aud  tlie  statement  of  facts  is  rewritten. 


Q\^    1)  LIMITED    INTERESTS.  **'^^ 

in  whom  the  legal  interest  is  vested.     A  second  or  third  mortgagee, 
though  not  in  possession,  has  a  sufficient  interest  in  the  estate  to  mam- 
tain  an  action  for  such  an  injury.    Although  it  is  true  that  a  stranger 
may  thus  be  liable  to  either  of  the  several  mortgagees,  as  well  as  to  the 
mortgagor,  it  does  not  follow  that  he  is  liable  to  all  successively.    The 
superior  right  is  in  the  party  having  superiority  of  title.     But  the  de- 
fendant can  resist  neither,  by  merely  showing  that  another  may  also 
sue,  or  has  sued.     If  he  would  defeat  the  claim  of  either,  he  must 
show   that  another,   having   a   superior   right,   has   appropriated   the 
avails  of  the  claim  to  himself.    The  demand  is  not  personal  to  either 
mortgagee,  but  arises  out  of  and  pertains  to  the  estate ;   and,  when  re- 
covered, applies  in  payment,  pro  tanto,  of  the  mortgage  debt,  and  thus 
ultimately  for  the  benefit  of  the  mortgagor,  if  he  redeem.     It  differs 
in  this  respect  from  the  claim  for  insurance  in  King  v.  State  Insur- 
ance Co.,  7  Cush.  1,  54  Am.  Dec.  683,  cited  by  the  defendant.     The 
defendant  has  the  same  means  of  protection  against  four  judgments 
that  any  one  has  who  is  Hable,  for  the  same  cause,  to  either  of  several 
parties  having  different  or  successive  interests  in  the  subject  matter. 
Due  satisfaction  will  discharge  all  the  claims,  if  made  to  a  party  hav- 
ing the  prior  right.    But  neither  can  be  defeated  without  some  appro- 
priation of  the  claim  to  the  use  of  him  who  holds  a  prior  right.    Thus 
it  is  no  defence  to  this  suit,  that  the  mortgagor  has  also  a  right  of 
action;    nor  even  that  he  has  brought  such  an  action;    because  the 
right  of  the  plaintiff  is  superior  to  that  of  the  mortgagor.    A  superior 
right  in  Mary  A.  Lewis  will  not  avail,  as  the  plaintiff  has  since  become 
the  owner  of  that  title.     Nor  is  the  existence  of  a  superior  right  in 
the  savings  bank,  as  first  mortgagee,  a  defence.    The  defendant  shows 
no  satisfaction  of  that  claim,  no  demand  made  upon  him  by  the  sav- 
ings bank,  and  no  authority  or  right  from  the  bank  to  resist  the  claim 
of  plaintiff  here,  in  behalf  of  or  for  the  benefit  of  the  first  mortgagee. 
It  is  not  contended  that  the  plaintiff's  mortgage  has  been  satisfied 
aijd  discharged  by  the  proceeds  of  the  sale  under  the  power  of  sale  m 
the  Lewis  mortgage.     The  correctness  or  fairness  of  those  proceed- 
ings, and  the  responsibility  of  the  plaintiff  for  the  full  value  of  the 
property,  or  the  amount  realized  upon  the  second  sale,  may  be  open 
to  the  representatives  of  the  mortgagor  in  a  suit  therefor;    but  this 
defendant  is  not  in  such  privity  as  to  be  entitled  to  inquire  into  the 
relations  or  the  state  of  the  account,  so  far  as  it  depends  on  equitable 
considerations,  between  the  mortgagor  and  mortgagee. 

(The  right  of  the  plaintiff  to  recover  in  this  action  does  not  depend 
upon  the  sufficiency  or  insufficiency  of  his  security.  Until  his  whole 
debt  is  paid,  he  cannot  be  deprived  of  any  substantial  part  of  his  en- 
tire security  without  full  redress  therefor)  Upon  the  facts  reported, 
we  are  satisfied  that  the  ruling  of  the  judge  who  heard  the  case,  allow- 
ing the  plaintiff  the  full  amount  of  the  damages  to  the  estate  caused 
by  the  removal  of  fixtures,  was  correct. 


332  COMPENSATORY   DAMAGES.  (Part   S 

TURRELL  V.   JACKSON. 
(Supreme  Court  of  New  Jersey,  1877.    39  N.  J.  Law,  329.) 

Dixon,  J.^*  Byard,  being  the  owner  ot  a  plot  of  land  in  Paterson, 
mortgaged  it,  February  2,  1871,  to  the  Washington  Life  Insurance 
Company,  which  forthwith  duly  recorded  the  mortgage.  Afterwards, 
on  February  6,  1872,  he  executed  a  second  mortgage  thereon  to  Ben- 
son, which  was  duly  registered  and  then  assigned  to  the  plaintiff. 
Subsequently  Byard  placed  a  boiler  and  engine  upon  the  premises.  On 
October  1,  1872,  he  conveyed  the  property  to  the  Paterson  Silk  Man- 
ufacturing Company,  which,  on  January  16,  1873,  executed  to  Miller 
a  mortgage  upon  the  realty,  and  a  separate  mortgage,  securing  the 
same  debt,  upon  the  boiler  and  engine  as  chattels.  On  June  26,  187-4, 
Miller  sold  the  boiler  and  engine  under  his  chattel  mortgage,  to  the 
defendant,  who  immediately  removed  them  from  the  premises.  At 
the  time  of  the  sale  and  removal,  the  mortgages  of  the  Washington 
Life  Insurance  Company  and  the  plaintiff  were  past  due,  and  the  plain- 
tiff had  commenced  proceedings  for  foreclosure  in  chancery,  but  nei- 
ther mortgagee  had  taken  possession  of  the  premises.  In  October, 
1874,  the  plaintiff  purchased  the  property  at  his  foreclosure  sale,  and 
entered  into  possession.     *     *     *     Postea  to  the  plaintiff. 

The  next  objection  which  the  defendant  urges  is,  that  as  there  was 
a  prior  unsatisfied  mortgage  upon  the  premises,  the  holder  of  which 
bad  not  waived  his  right  to  recover  of  the  defendant  for  the  removal 
of  the  fixtures,  the  plaintiff  being  second  mortgagee  only,  could  not 
maintain  an  action.  The  ground  upon  which  a  mortgagee,  not  in  pos- 
session, may  support  a  suit  at  law  against  the  mortgagor,  or  his  al- 
ienee, for  damages  resulting  from  acts  injurious  to  the  mortgaged 
premises,  has  not  been  settled  in  the  courts  of  this  state,  and  the  ad- 
judications on  that  subject,  outside  of  New  Jersey,  are  not  in  accord, 
as  will  be  perceived  by  a  reference  to  the  cases  already  cited.  Some- 
times the  mortgagee  has  been  deemed  the  legal  owner  of  the  fee  as 
against  the  mortgagor  and  his  assigns,  and  so  entitled  to  hold  them 
responsible  for  any  act,  beyond  ordinary  use,  injurious  to  the  land,  to 
the  full  extent  of  that  injury;  and  in  Gooding  v.  Shea,  103  Mass. 
360,  4  Am.  Rep.  563,  a  third  mortgagee  was  regarded  as  standing  in 
that  position,  and  having  the  right  to  full  damages,  notwithstanding 
the  fact  that  the  prior  mortgagees  had  superior  rights  to  the  same  dam- 
ages, unless  the  defendant  could  show  that  some  of  those  prior  mort- 
gagees had  appropriated  the  damages  to  themselves.  See,  also,  By- 
rom  v.  Chapin,  113  Mass.  308,  and  King  v.  Bangs,  120  Mass.  514. 

For  so  broad  a  claim  on  behalf  of  a  first  mortgagee,  technical  ar- 
guments, deserving  of  serious  consideration,  may  perhaps  be  adduc- 
ed; but,  I  think,  no  subsequent  mortgagee  can  establish  a  like  title. 
The  reasons  which  support  the  claim  of  the  first  mortgagee  defeat  the 

28  Part  of  the  opinion  is  omitted. 


Ch.  1)  LIMITED    INTERESTS.  333 

claim  of  every  other  one,  to  be  regarded  as  the  legal  owner  of  the  fee. 
A  second  mortgagee  is,  in  law,  as  in  equity,  a  mere  lien  holder,  and  in 
that  character  alone  can  he  enforce  any  demand  for  redress. 

In  the  case  of  Van  Pelt  v.  McGraw  (N.  Y.)  4  Comst.  110,  the  right 
of  mortgagees  to  maintain  such  suits  is  declared  to  rest  upon  the 
principle  that  the  mortgage,  as  a  security,  has  been  impaired,  and  the 
damages,  it  is  said,  are  to  be  limited  to  the  amount  of  injury  to  the 
mortgage,  however  great  the  injury  to  the  land  may  be.  Upon  this 
principle  all  mortgagees  may  stand,  and  it  is  recommended  by  the  con- 
sideration that  it  gives  to  each  party  actually  injured  a  remedy  meas- 
ured by  the  injury  received.  It  obviates  some  technical  objections,  as 
well  as  some  practical  difficulties,  which  attend  the  rule  first  adverted 
to,  and  enables  the  courts  of  law  to  do  justice  by  their  equitable  ac- 
tion on  the  case.  Sometimes  the  facts  disclosed  at  the  trial  may  be  of 
such  a  nature  as  to  make  it  doubtful  whether  the  damages  should  go 
to  the  plaintiff  or  to  an  earlier  mortgagee;  but,  in  those  cases,  the  de- 
fendant is  placed  in  no  greater  danger  than  is  a  defendant  in  an  action 
upon  a  policy  of  insurance,  brought  by  the  owner,  where  the  loss  is 
made  payable  to  the  mortgagee,  and  the  language  of  the  court  in  such 
a  case  (Martin  v.  Franklin  Fire  Insurance  Co.,  38  N.  J.  Law,  140,  145, 
20  Am.  Rep.  372),  indicates  a  mode  in  which  all  interests  may  be 
guarded:  "The  rights  of  the  (earlier)  mortgagee  can  be  protected  by 
payment  of  the  money  into  court,  and  the  insurer  (defendant)  may  ob- 
tain indemnity  against  any  subsequent  suit  by  the  (earlier)  mortgagee, 
by  the  action  of  the  court  into  which  the  money  is  paid ;  if  actions  be 
pending  at  the  same  time  by  the  owner  and  the  mortgagee  (two  mort- 
gagees), the  court,  under  its  equitable  powers,  can  so  control  the  liti- 
gation that  no  injustice  will  be  done."     *     *     *  29     Affirmed. 

29  See,  also,  Salisbury  v.  W.  N.  C.  R.  R.  Co.,  98  N.  C.  465,  4  S.  B.  465  (1887); 
Brown  v.  Bowen,  30  N.  Y.  519,  86  Am.  Dec.  406  (1864). 


(^M-^^ 


Co   '   ^^ 


^. 


c^ 

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'i'-vu^^V*     (^Cft    C4Nn^ 


^'  n-'l 


TvA*  1  \..*^c 


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334i  COMPENSATORY   DAMAGES.  (Part    5 


SECTION  4.— EXACT  INDEMNITY  AS  THE  OBJECT  OF 

..  ^^  THE  LAW.  _w^^  ^^^-^i 

(A)  How  Determined.  ^  ^  ^ 

...  -.  .,  ,,'.,,.  /. . .  .  .-u' ^.-^^.ddftCuf 

SMITH  V.  GRIFFITH  et  al. 
(Supreme  Court  of  New  York,  1842.     3  Hill,  333,  38  Am.  Dec.  639.) 

Nelson,  C.  J.***  *  *  *  f^e  defendants  proposed  to  prove  that, 
subsequent  to  the  delivery  of  the  trees  to  them  as  carriers,  and  the 
happening  of  the  damage,  it  had  been  ascertained  by  dealers,  that  Al- 
pine mulberry  trees  were  in  truth  of  trifling  value  compared  with  the 
prices  at  which  they  had  been  sold  in  the  market ;  that  these  had  been 
greatly  inflated  and  disproportioned  to  the  intrinsic  value;  that  the 
trees  were  not  worth  cultivating  for  the  purpose  of  raising  the  silk 
worm ;  that  they  were  purchased  by  the  plaintifif  to  plant  as  a  nursery, 
from  which  to  sell  the  production;  and  that  the  article  was  of  no 
value  the  next  year,  and  would  not  have  paid  the  expense  of  cultiva- 
tion. All  this  evidence,  I  am  of  opinion,  was  properly  rejected,  as  hav- 
ing no  legitimate  bearing  upon  the  question.     *     *     * 

CowEN,  J.  (dissenting).  *  *  *  This  action  was  case,  against 
common  carriers,  to  recover  for  the  loss  of  two  boxes  of  Alpine  mul- 
berry trees.  It  was  not  an  action  by  a  vendor  against  the  vendee  for 
goods  sold  at  an  agreed  price.  The  question,  therefore,  I  think,  stood 
open  at  the  trial  to  all  the  proof  which  would  be  admissible  on  a  quan- 
tum valebant.  The  market  price  being  established,  the  defendants' 
counsel  offered  to  prove  that  this  depended  on  an  estimate  entirely 
false,  more  mature  observation  having  shown  that  the  article  was  in 
truth  of  no  intrinsic  value.  If  a  man  will  purchase  such  an  article  at 
an  agreed  price,  without  warranty  or  fraud,  I  readily  agree  that  he 
cannot  reduce  the  price  by  impeaching  the  article  as  useless ;  but  I  am 
not  prepared  to  admit  the  same  rule  as  between  bailor  and  bailee,  where 
no  price  is  agreed  on  in  case  of  loss.  A  carrier  is  bound  to  receive  and 
convey  all  goods  in  his  line  for  the  usual  rate  of  compensation.  I  do 
not  mention  this  obligation  as  a  reason  why  he  should  not  pay  the 
value  of  the  goods;  but  for  saying  that  where  they  happen  to  be  ac- 
cidentally lost,  he,  of  all  persons,  should  be  the  last  upon  whom  courts 
and  juries  ought  to  inflict  the  artificial  prices  of  the  speculator;  that 
it  should  rather  be  confined  to  buyers  and  sellers,  who  are  the  manu- 
facturers of  such  prices — a  work  which  is  entirely  res  inter  alios  in 

3  0  Parts  of  the  opinion  of  Nelson,  C.  J.,  and  of  the  dissenting  opinion  of 
Cowen,  J.,  are  omitted. 


Ch.  1)  VALUE.  335 

relation  to  the  carrier.  But  without  urging  any  such  consideration, 
let  us  consider  the  stronger  case  of  buyer  and  seller.  Take  it  that  any 
article  of  merchandise,  to  all  appearance  of  fair  value,  is  sold  for  what 
it  is  reasonably  worth;  prima  facie,  I  admit,  the  vendor  shall  recover 
the  market  price.  It  is  shortly  after  discovered,  however,  that  it  is 
really  worth  little  or  nothing,  from  some  secret  cause  unknown  to  the 
parties  and  believed  not  to  exist  at  the  time  of  sale.  It  seems  to  me 
this  would  be  available  as  a  defence,  and,  indeed,  that  it  would  be  so, 
even  on  the  principle  conceded  at  the  circuit.  I  am  unable  to  dis- 
tinguish between  an  offer  to  show  that  the  trees  were  unfit  for  feeding 
silk  worms,  and, an  offer  to  show  a  total  or  partial  worthlessness  for 
any  other  cause.)  It  was  contended  at  the  bar  that  the  current  price 
is  the  absolute  standard ;  and  I  can  perceive  no  other  plausible  ground 
on  which  a  party  who  never  bound  himself  by  contract  to  pay  any 
specific  price  can  be  concluded.  It  is  plausible  to  say,  the  plaintiff 
might  have  got  so  much  for  a  plausible  article ;  that  it  was  lost,  and 
his  chance  to  get  that  price  was  lost  with  it.  This,  if  allowed,  is  an 
estoppel  as  well  against  the  right  to  show  one  defect  as  another.  It 
applies  emphatically  to  the  bubble  trade  of  the  country,  in  which  prices 
are  generally  notorious,  and  easily  made  out  by  clouds  of  witnesses.  A 
man  takes  an  article  in  that  trade  to-day,  and  agrees  to  pay  what  it  is 
reasonably  worth  tomorrow.  On  subsequent  observation  and  expe- 
rience, the  bubble  bursts,  for  the  reason  that  it  was  really  as  worthless 
when  purchased,  as  afterwards;  yet  it  is  contended  that  jurors  are 
absolutely  bound  to  say,  and  courts  to  adjudge,  that  such  article  was 
reasonably  worth  the  price  which  a  universal  mistake  had  affixed  to 
it.  Precisely  the  same  principle  would  extend  to  a  fair  looking  horse 
which  no  one  could  ride  or  drive,  or  which  was  secretly  laboring  under 
an  incurable  disease ;  to  mulberry  trees  unfit  to  feed  silk  worms,  or 
fair  looking  slips  for  transplanting,  which  have  lost  the  principles  of 
vegetable  life.  I  am  unable  to  perceive  why  the  damages  can  be  re- 
duced by  showing  an  article  worthless  for  one  purpose,  and  yet  not  be 
at  all  affected  by  proving  it  worthless  for  all  ^purposes.  This  latter  I 
understand  to  have  been  pfoposed  at  the  circuit.  Let  us  look  at  other 
examples.  A  man  assigns  his  patent  of  a  new  and  famous  invention 
for  what  it  is  reasonably  worth,  on  a  year's  credit.  The  year  comes 
round  and  it  turns  out  that  the  invention  had  been  anticipated,  and 
the  patent  is  therefore  void.  So  of  quack  medicines,  which  was,  I 
believe,  put  on  the  argument  as  an  illustration  for  the  plaintiff.  So  of 
a  note  against  a  man  reputed  wealthy,  who  will  testify  that  he  was  ut- 
terly insolvent  at  the  time.  So  also  of  stock  in  a  corporation  whose 
officers  will  swear  that  it  had  no  assets.  In  all  these  and  like  cases,  is 
it  right  to  say  that  the  measure  of  value  shall  be  the  fancy  price  at  the 
day  ?  The  case  of  a  Raphael,  sold  for  what  it  is  reasonably  worth,  but 
which  turns  out  to  be  the  picture  of  an  inferior  artist,  was  put,  in  the 
argument  for  the  plaintiff,  as  a  crowning  illustration,  I  think  it  was 
equally  unhappy  with  that  of  the  quack  medicines.    It  seems  to  be  that 


336  COMPENSATORY  DAMAGES.  (Part    5 

the  learned  counsel  confounded  the  price  to  be  paid  by  a  carrier,  with 
the  case  of  j)rices  agreed  by  a  purchaser,  where  there  is  no  warranty 
or  fraud.  \  I  do  not  understand  that,  where  damages  are  open  to  an 
estimate  on  the  principles  of  a  quantum  valebant,  the  mere  fictitious 
value  is  intended  by  the  la^^.  And  I  can  feel  no  doubt  that  persons 
who  happen  accidentally  to  injure,  destroy  or  lose  such  articles,  are 
entitled  to  the  full  benefit  of  the  principle.  In  trover  for  a  promissory 
note,  though  this  court  held  the  defendant  to  the  sum  expressed  by  it, 
they  admitted  that  the  maker's  insolvency  might  be  shown  in  mitiga- 
tion of  damages.  Ingalls  v.  Lord,  1  Cow.  240.  I  understand  the  of- 
fer, in  the  case  before  us,  as  made  at  the  trial,  to  imply  a  secret  defect 
in  these  trees — i.  e.,  high  anticipations  were  indulged  in  the  market, 
that  this  kind  of  mulberry  tree  would  be  of  great  consequence  in  the 
silk  manufacture  of  the  northern  states,  whereas  it  was  a  mere  delu- 
sion of  the  moment,  the  trees  being  really  a  useless  incumbrance  to 
the  premises  of  the  cultivator;  a  failure  in  every  sense,  like  peachum 
wood  supposed  to  be  braziletto.  And  shall  I  be  put  to  show,  that  a 
carrier  ought  not  to  pay  as  much  for  the  loss  of  the  counterfeit  arti- 
cle, as  for  the  real  one?  the  same  for  a  package  of  bank  bills  on  an 
institution  secretly  bankrupt  at  the  time,  as  if  it  were  sound?  or  for 
counterfeit  bills,  because  they  happen  to  have  been  so  well  executed  as 
to  deceive  the  bailor  and  those  to  whom  he  might  innocently  have  paid 
them  over,  as  if  genuine?  With  deference,  it  seems  to  me  there  is  no 
end  to  the  extravagances  of  the  principle.     *     *     * 


KOUNTZ  V.   KIRKPATRICIC 

(Supreme  Court  of  Pennsylvania,   1S72.     72  Pa.  376,   13  Am.   Rep.  687.) 

Agnew,  J.3^  *  *  *  On  the  7th  of  June,  1869,  Kountz  sold  to 
Kirkpatrick  &  Lyons,  2,000  barrels  of  crude  petroleum,  to  be  delivered 
at  his  option,  at  any  time  from  the  date,  until  the  31st  of  December, 
1869,  for  cash  on  delivery,  at  131/2  cents  a  gallon.  On  the  2-4th  of 
June,  1869,  Kirkpatrick  &  Lyons  assigned  this  contract  to  Fisher  & 
Brothers.  Kountz  failed  to  deliver  the  oil.  He  defends  on  the  ground 
that  Kirkpatrick  &  Lyons,  and  others  holding  like  contracts  for  de- 
livery of  oil,  entered  into  a  combination  to  raise  the  price,  by  buying 
up  large  quantities  of  oil,  and  holding  it  till  the  expiration  of  the 
year  1869,  and  thus  to  compel  the  sellers  of  oil  on  option  contracts,  to 
pay  a  heavy  difference  for  nondelivery.     *     *     * 

In  the  sale  of  chattels,  the  general  rule  is,  that  the  measure  is  the 
difference  between  the  contract  price  and  the  market  value  of  the  arti- 
cle at  the  time  and  place  of  delivery  under  the  contract.  It  is  unneces' 
sary  to  cite  authority  for  this  well  established  rule,  but  as  this  case 
raises  a  novel  and  extraordinary  question  between  the  true  market 

31  Part  of  the  opinion  is  omitted. 


Ch.  1)  ^-ii--t      •'  '  '    VALUE,      o-^-- T^^ 

value  of  the  article,  and  a  stimulated  market  price,  created  by  artificial  ^• 
and  fraudulent  practices,  it  is  necessary  to  fix  the  true  meaning  of 
the  rule  itself,  before  we  can  approach  the  real  question.  Ordinarily, 
when  an  article  of  sale  is  in  the  market,  and  has  a  market  value,  there 
is  no  difference  between  its  value  and  the  market  price,  and  the  law 
adopts  the  latter  as  the  proper  evidence  of  the  value.  This  is  not, 
however,  because  value  and  price  are  really  convertible  terms,  but  on- 
ly because  they  are  ordinarily  so  in  a  fair  market.  The  primary  mean- 
ing of  "value"  is  worth,  and  this  worth  is  made  up  of  the  useful  or 
estimable  qualities  of  the  thing.  See  Webster's  and  Worcester's  Dic- 
tionaries. "Price,"  on  the  other  hand,  is  the  sum  in  money  or  other 
equivalent  set  upon  an  article  by  a  seller,  which  he  demands  for  it :  Id. 
Value  and  price  are,  therefore,  not  synonyms,  or  the  necessary  equi- 
valents of  each  other,  though  commonly,  market  value  and  market 
price  are  legal  equivalents.  When  we  examine  the  authorities,  we  find 
also  that  the  most  accurate  writers  use  the  phrase  market  value,  not 
market  price.     *     *     * 

It  is  equally  obvious,  when  we  consider  its  true  nature,  that  as  evi- 
dence, the  market  price  of  an  article  is  only  a  means  of  arriving  at 
compensation;   it  is  not  itself  the  value  of  the  article,  but  is  the  evi- 
dence of  value.    The  law  adopts  it  as  a  natural  inference  of  fact,  but 
not  as  a  conclusive  legal  presumption.    It  stands  as  a  criterion  of  val- 
ue, because  it  is  a  common  test  of  the  ability  to  purchase  the  thing. 
But  to  assert  that  the  price  asked  in  the  market  for  an  article  is  the 
true  and  only  test  of  value,  is  to  abandon  the  proper  object  of  damages, 
viz.,  compensation,  in  all  those  cases  where  the  market  evidently  does 
not  afford  the  true  measure  of  value.    This  thought  is  well  expressed 
by  Lewis,  C.  J.,  in  Bank  v.  Reese,  26  Pa.  146.     "The  paramount  rule 
in  assessing  damages  (he  says)  is  that  every  person  unjustly  deprived 
of  his  rights,  should  at  least  be  fully  compensated  for  the  injury  he 
sustained.    ^Vhere  articles  have  a  determinate  value  and  an  unlimited 
production,  the  general  rule  is  to  give  their  value  at  the  time  the  own- 
er was  deprived  of  them,  with  interest  to  the  time  of  verdict.]  This 
rule  has  been  adopted  because  of  its  convenience,  and  because  it  in 
general  answers  the  object  of  the  law,  which  is  to  compensate  for  the 
injury.    In  relation  to  such  articles,  the  supply  usually  keeps  pace  with 
the  demand,  and  the  fluctuations  in  the  value  are  so  inconsiderable  as 
to  justify  the  courts  in  disregarding  them  for  the  sake  of  convenience 
and  uniformity.    In  these  cases,  the  reason  why  the  value  at  the  time 
of  conversion,  with  interest,  generally  reaches  the  justice  of  the  case, 
is  that  when  the  owner  is  deprived  of  the  articles,  he  may  purchase 
others  at  that  price.    But  it  is  manifest  that  this  would  not  remunerate 
him  where  the  article  could  not  be  obtained  elsewhere,  or  where  from 
restrictions  on  its  production,  or  other  causes,  its  price  is  necessarily 
subject  to  considerable  fluctuation."    This  shows  that  the  market  price 
is  not  an  invariable  standard,  and  that  the  converse  of  the  case  then 
Giib.Dam.— 22 


338  COMPENSATORY   DAMAGES.  (Part    C 

before  Judge  Lewis  is  equally  true — that  is  to  say — when  the  market 
price  is  unnaturally  inflated  by  unlawful  and  fraudulent  practices,  it 
cannot  be  the  true  means  of  ascertaining  what  is  just  compensation. 
It  is  as  unjust  to  the  seller  to  give  the  purchaser  more  than  just  com- 
pensation, as  it  is  to  the  purchaser  to  give  him  less.  Right  upon  this 
point,  we  have  the  language  of  this  court  in  the  case  of  a  refusal  by  a 
purchaser  to  accept.  Andrews  v.  Hoover,  8  Watts,  240.  It  is  said: 
"The  jury  is  bound  by  a  measure  of  damages  where  there  is  one,  but 
not  always  by  a  particular  means  for  its  ascertainment.  [Now  the  meas- 
ure in  a  case  like  the  present,  is  the  difference  between  the  price  con- 
tracted to  be  paid  and  the  value  of  the  thing  when  it  ought  to  have  been 
accepted^)  and  though  a  resale  is  a  convenient  and  often  satisfactory, 
means,  it  does  not  follow  that  it  is,  nor  was  it  said  in  Girard  v.  Taggart, 
to  be  the  only  one.  On  the  contrary,  the  propriety  of  the  direction  there 
that  the  jury  were  not  bound  by  it,  if  they  could  find  another  more  in 
accordance  with  the  justice  of  the  case,  seems  to  have  been  admitted; 
the  very  thing  complained  of  here."  Judge  Strong  took  the  same 
view  in  Trout  v.  Kennedy,  47  Pa.  393.  That  was  the  case  of  a  tres- 
passer, and  the  jury  had  been  told  that  the  plaintiff  was  entitled  to  the 
just  and  full  value  of  the  property,  and  if  at  the  time  of  the  trespass 
the  market  was  depressed,  too  much  importance  was  not  to  be  given 
to  that  fact.  "If  (says  Judge  Strong)  at  any  particular  time,  there 
be  no  market  demand  for  an  article,  it  is  not  of  course  on  that  account 
of  no  value.  What  a  thing  will  bring  in  the  market  at  a  given  time, 
is  perhaps  the  measure  of  its  value  then;  but  it  is  not  the  only  one." 
These  cases  plainly  teach  that  value  and  market  price  are  not  always 
convertible  terms;  and  certainly  there  can  be  no  difference  in  jus- 
tice or  law,  in  an  unnatural  depression  and  an  unnatural  exaltation  in 
the  market  price — neither  is  the  true  and  only  measure  of  value. 

(These  general  principles  in  the  doctrine  of  damages  and  authoriti- 
ties,  prove  that  an  inflated  speculative  market  price,  not  the  result  of 
natural  causes,  but  of  artificial  means  to  stimulate  prices  by  unlawful 
combinations  for  the  purposes  of  gain,  cannot  be  a  legitimate  means  of 
estimating  just  compensation.  It  gives  to  the  purchaser  more  than  he 
ought  to  have,  and  compels  the  seller  to  pay  more  than  he  ought  to 
give,  and  it  is  therefore  not  a  just  criterion.j  *     *     * 

It  remains  only  to  ascertain  whether  the  defendant  gave  such  evi- 
dence as  to  require  the  court  to  submit  to  the  jury  to  ascertain  and 
determine  the  fair  market  value  of  crude  oil  per  gallon,  on  the  31st 
of  December,  1869,  as  demanded  by  the  defendant  in  his  fifteenth 
point.  There  was  evidence  from  which  the  jury  might  have  adduced 
the  following  facts,  viz.:  That  in  the  month  of  October,  1869,  a  num- 
ber of  persons  of  large  capital,  and  among  them  Kirkpatrick  &  Lyons, 
combined  together  to  purchase  crude  oil,  and  hold  it  until  the  close  of 
the  year  1869 ;  that  these  persons  were  the  holders,  as  purchasers,  of 
a  large  number  of  sellers'  option  contracts,  similar  to  the  one  in  suit, 
that  they  bought  oil  largely,  and  determined  to  hold  it  from  the  mar- 


UJ-A^'  —  X^N^vk'   Ni*'-*^ 


Ch.  1)  VALUE.  339 

ket  until  the  year  1870  before  selling;  that  oil,  in  consequence  of 
this  combination,  ran  up  in  price,  in  the  face  of  an  increased  supply, 
until  the  31st  day  of  December,  1SG9,  reaching  the  price  of  seventeen 
to  eighteen  cents  per  gallon,  and  then  suddenly  dropped  as  soon  as 
the  year  closed.  Major  Frew,  one  of  the  number,  says:  "It  was  our 
purpose  to  take  the  oil,  pay  for  it,  and  keep  it  until  January  1st,  1870. 
otherwise  we  would  have  been  heading  the  market  on  ourselves." 
Mr.  Long  says  that  on  the  3d  of  January,  1870,  he  sold  oil  to  Fisher 
&  Brothers  (the  plaintiffs)  at  thirteen  cents  a  gallon,  and  could  find  no 
other  purchaser  at  that  price.  Several  witnesses,  dealers  in  oil,  tes- 
tify that  they  knew  of  no  natural  cause  to  create  such  a  rise  in  price, 
or  to  make  the  difference  in  price  from  December  to  January.  It  was 
testified,  on  the  contrary,  that  the  winter  production  of  oil  was  greater 
in  December,  1869,  than  in  former  years  by  several  thousand  barrels 
per  day,  a  fact  tending  to  reduce  the  price,  when  not  sustained  by 
other  means.  Mr.  Benn  says  he  knew  no  cause  for  the  sudden  fall  in 
price  on  the  1st  January,  1870,  except  that  the  so-called  combination 
ceased  to  buy  at  the  last  of  December,  1869. 

It  was,  therefore,  a  fair  question  for  the  jury  to  determine  whether 
the  price  which  was  demanded  for  oil  on  the  last  day  of  December, 
1869,  was  not  a  fictitious,  unnatural,  inflated  and  temporar}'  price,  the 
result  of  a  combination  to  "bull  the  market,"  as  it  is  termed,  and  to 
compel  sellers  to  pay  a  false  and  swollen  price  in  order  to  fulfil  their 
contracts.  If  so,  then  such  price  was  not  a  fair  test  of  the  value  of 
the  oil,  and  the  jury  would  be  at  liberty  to  determine,  from  the  prices 
before  and  after  the  day,  and  from  other  sources  of  information,  the 
actual  market  value  of  the  oil  on  the  31st  of  December,  1869.    *    *    * 

Judgment  for  plaintiff  for  $3,753  reversed,  and  venire  de  novo 
awarded. 


FOSTER  V.   RODGERS. 

(Supreme  Court  of  Alabama,  1855.     27  Ala.  602.) 

The  defendant  sold  at  Montgomery  to  plaintiff  52  bales  of  cotton 
at  12%  cents  per  pound  by  sample,  to  be  of  grade  "strictly  good,  mid- 
dling to  middling  fair,"  The  same  was  shipped  from  Montgomery 
to  New  Orleans,  and  was  there  found  to  be  wet  and  "water-packed," 
so  as  to  be  nearly  worthless.  In  this  action,  brought  for  breach  of  the 
warranty,  the  court  admitted  testimony  to  show  what  the  cotton 
brought  at  public  auction  in  New  Orleans,  and  what  the  market  price 
of  cotton  was  in  New  Orleans  of  the  grade  warranted,  from  the  date 
of  purchase  to  the  date  of  auction  sale.  The  defendant  requested  in- 
structions that  such  testimony  was  incompetent,  which  were  refused. 

GoLDTHWAiTE,  J.^^  There  is  no  doubt  that,  on  a  warranty  of  qual- 
ity, or  soundness,  the  purchaser  is  generally  entitled  to  recover  the  dif- 

3  2  Tart  of  the  opinion  is  omitted,  and  the  statement  of  facts  is  rewritten. 


J.  r*  ' 


340  COMPENSATORY  DAMAGES.  (Part    5 


?erence  between  the  actual  value  of  the  article  at  the  time  of  the  sale, 
and  the  value  which  the  article  would  have  been  worth  at  that  time 
had  it  come  up  to  the  warranty.     *     *     * 

If  wi  concede  the  rule  insisted  upon  by  the  appellant,  that  the  dif- 
ference of  value  between  the  article  sold  and  the  article  as  warranted 
at  time  and  place  of  sale  is  the  criterion  of  the  damages,  we  see  no 
error  in  the  refusal  of  the  court  to  give  the  other  charges  requested. 
The  evidence  is,  that  the  cotton  was  sold  by  samples  on  the  9th  Jan- 
uary, 1851,  and  it  was  warranted  to  come  up  to  the  samples.  The 
price  that  it  sold  for  in  Orleans  on  the  5th  of  May,  at  public  auction, 
after  notice  to  the  appellant,  was  certainly  a  circumstance  tending  to 
establish  its  value  at  that  time  and  place ;  and  as  there  was  evidence 
of  the  value  of  the  sample  cotton  at  the  same  time  and  place,  the  pro- 
portion of  value  between  the  two  cottons  at  Orleans  is  established. 
The  evidence  shows,  also,  that  the  relative  value  of  the  two  cottons 
was  the  same  in  Montgomery  as  in  Orleans,  and  it  further  shows  the 
value  of  the  sample  cotton  at  the  former  place  on  the  9th  January, 
1851 ;  and  this  being  established  affords  the  means  of  ascertaining  the 
value  of  the  other  at  that  time  and  place.  It  was  therefore  proper  for 
the  jury  to  look  to  the  price  the  cotton  sold  at  in  Orleans  on  the  5th 
May,  1851,  in  connection  with  the  other  evidence,  in  order  to  deter- 
mine its  value  on  the  day  of  sale  in  Montgomery.     *     *     * 


JOHNSON  et  al.  v.  ALLEN  et  al. 
(Supreme  Court  of  Alabama,  1884.     78  Ala.  387,  56  Am.  Rep.  34.) 

Johnson  &  Thornton  contracted,  September  12,  1882,  to  sell  to 
Allen  &  Jemison,  at  Coaling,  Ala.,  500  tons  of  coal  from  their  mines 
at  Coaling,  at  $1.50  per  ton,  between  September,  1882,  and  March  31, 
1883.  They  delivered  416  tons.  They  were  the  only  persons  deal- 
ing in  or  mining  coal  at  Coaling,  and  the  coal  could  not  be  had  there 
at  any  price,  except  from  them.  Allen  &  Jemison  were  coal  dealers  at 
Tuskaloosa,  and  defendants  knew  that  the  coal  was  to  be  used  there. 
The  court  admitted  evidence  to  show  the  market  price  of  coal  in  Tusk- 
aloosa during  the  period  covered  by  the  contract,  and  the  freight  rates 
between  Coaling  and  Tuskaloosa. 

C1.0PT0N,  J.^^  *  *  *  It  is  the  general  rule,  that  on  the  vendor's 
failure  to  deliver  the  goods  according  to  the  contract,  the  measure  of 
damages  is  the  difference  between  the  contract  price  and  the  market 
price  at  the  place  where,  and  the  time  when  they  should  have  been  de- 
livered. 2  Benj.  on  Sales,  §  1335;  Sleuter  v.  Wallbaum,  45  111.  44; 
Worthen  v.  Wilmot,  30  Vt.  555 ;  Grand  Tower  Co.  v.  Phillips,  23  Wall. 
471,  23  L.  Ed.  71;   Rose's  Ex'rs  v.  Bozeman,  41  Ala.  678;    Miles  v. 

83  Part  of  the  opinion  is  omitted,  and  the  statement  of  facts  is  rewritten. 


Ch.  1)  VALUE.  341 

Miller,  12  Bush  (Ky.)  134.  There  are  cases  in  which  special  damages 
may  be  recovered;  but  no  special  damages  are  claimed  in  this  case. 

As  there  was  no  market  price  for  coal  at  Coaling,  the  place  of  de- 
livery, except  that  made  by  the  defendants,  and  as  the  defendants 
knew  that  the  coal  was  purchased  to  be  used  in  Tuskaloosa,  this  be- 
ing the  nearest  market,  the  measure  of  damages  is  the  difference  be- 
tween the  market  price  in  Tuskaloosa  and  the  contract  price,  with  the 
expense  of  transportation  added.  Grand  Tower  Co.  v.  Phillips,  supra; 
Ward  V.  Reynolds,  32  Ala.  384;   Foster  v.  Rodgers,  27  Ala.  GOG. 

Where  the  goods  are  to  be  delivered  by  installments,  and  there  is 
a  failure  to  deliver  two  or  more  or  all  of  the  installments,  the  proper 
measure  of  damages  is  the  sum  of  the  dift'erences  between  the  con- 
tract and  market  prices,  of  the  quantity  of  each  installment  not  de- 
livered, at  the  respective  times  of  delivery,  and  the  place  of  delivery; 
each  of  the  failures  to  deliver  constituting  a  separate  and  distinct 
breach.     *     *     *  a* 


WEHLE  V.  HAVILAND. 

(Court  of  Appeals  of  New  York,  1877.     69  N.  T.  448.) 
See  post,  p,  514,  for  a  report  of  the  case. 


HARRIS  V.  PANAMA  R.  CO. 
(Court  of  Appeals  of  New  York,  1874.     58  N.  Y.  660.) 

This  action  was  brought  to  recover  damages  for  the  killing  of  a 
race  horse  while  being  transported  upon  defendant's  road,  across  the 
Isthmus  of  Panama,  through  the  alleged  negligence  of  defendant. 

Upon  the  trial  evidence  was  given  tending  to  show  that,  while  the 
horse  could  have  been  sold  for  some  price,  there  was  no  market  price, 
properly  speaking,  for  such  a  horse  on  the  Isthmus.  Plaintiff  offered, 
and  was  allowed,  to  prove  that  the  route  over  the  Isthmus  was  part 
of  a  usual  route  to  California,  which  was  the  destination  of  the  horse 
in  question,  and  also  to  prove  the  market  value  at  San  Francisco.  The 
court  instructed  the  jury,  that  they  were  to  use  the  proof  submitted 
to  enable  them  to  answer  the  question  of  the  value  at  the  time  and  place 
of  the  injury.  Held,  no  error;  that  where  there  is  a  market  price  or 
value  at  the  time  and  place,  that  is  the  most  suitable  means  of  ascertain- 
ing value,  but  not  the  only  one  (Muller  v.  Eno,  14  N.  Y.  597,  607,  608 ; 
Parks  v.  Morris  Ax  &  Tool  Co.,  54  N.  Y.  593)  ;(but  that  this  species  of 
evidence  could  not  be  completely  reliable  where  it  appears  that  similar 
articles  have  been  bought  and  sold,  in  the  way  of  trade,  in  sufficient 

34  See.  also.  Gresnrv  v.  McDowel.  8  Weiul.  (X.  Y.)  435  (1832) ;  Grand  Tower 
CJo.  V.  rhillips,  23  Wall.  471,  23  I*  Ed.  71  (1874). 


342  COMPENSATORY  DAMAGES.  (Part    5 

quantity  or  often  enough  to  show  a  market  value ;  and  in  the  absence  of 
such  proof,  proof  of  such  value  at  some  other  place  was  admissible j  in 
which  case  the  place  of  destination  was  the  most  natural  resort  to  sup- 
ply the  needed  proof;  it  being  resorted  to,  however,  only  to  enable  the 
jury  to  answer  the  inquiry  as  to  the  value  at  the  place  of  the  actual  loss, 
great  deduction  being  made  for  the  risk  and  expense  of  further  trans- 
portations.    *     *     *  2*^ 


GLASPY  v.  CABOT. 
(Supreme  Judicial  Court  of  Massachusetts,   1883.    135  Mass.   435.) 

On  September  6,  1880,  the  plaintiff's  schooner  "Mary  A"  went 
ashore  off  Annisquam  Harbor  in  a  badly  damaged  condition.  On  Sep- 
tember 13th  the  master  made  a  sale  (which  was  unauthorized  and  un- 
justified) of  the  vessel  to  Murphy  for  $80.  He,  with  one  Power,  rais- 
ed her,  towed  her  to  Boston,  broke  her  up,  and  sold  her  hull  to  Cabot 
for  $200.  All  three  are  parties  defendant  in  this  action  for  conver- 
sion. The  market  value  of  the  vessel  from  St.  John,  the  port  whence 
she  sailed,  prior  to  her  going  ashore,  was  from  $1,000  to  $1,400. 

Field,  J.^^  Cabot  converted  to  his  use  the  hull  when  he  purchased 
it  in  Boston,  and  took  possession  of  and  used  it  as  his  own.  The 
changes  in  the  hull,  whereby  its  value  had  been  increased,  which  had 
been  made  by  Murphy  after  he  purchased  the  schooner  then  lying  on 
Coffin's  Beach,  were  not  made  at  the  request  of  the  plaintiff,  and  if 
the  plaintiff  had  retaken  or  replevied  the  schooner  from  Murphy  in 
Boston,  he  would  have  received  her  in  the  condition  she  was  then  in. 

The  market  value  of  the  property  at  the  time  and  place  of  conver- 
sion, with  interest  from  that  time,  is  admitted  to  be  the  general  rule 
for  the  measure  of  damages,  but  the  damages  are  diminished  when 
the  property  is  in  whole  or  in  part  delivered  to  the  owner,  or  when 
the  defendant  has  a  lien  upon  it,  or  when  the  plaintiff  has  only  a  spe- 
cial or  partial  interest  in  it,  and  is  not  responsible  over  to  another  per- 
son for  any  of  the  damages  recovered.  These  cases  fall  within  neither 
of  these  exceptions. 

The  conversion  by  Murphy  and  those  acting  under  him  was  when 
he  purchased  the  schooner,  and  took  possession  of  her  as  his  own. 
This  is  a  distinct  conversion  from  the  conversion  of  the  hull  bv  Cabot. 
The  damages  for  this  conversion  by  jVIurphy  and  his  codefendant 
cannot  be  enhanced  by  the  increased  value  of  the  schooner  from  the 
repairs  and  changes  in  her  condition  they  made  after  thev  had  con- 
verted her  to  their  own  use,  but  must  be  confined  to  the  value  of  the 
schooner  as  she  lay  on  Coffin's  Beach.  If  damages  are  recovered  for 
this  conversion  for  the  full  value  of  the  schooner  as  she  lay  on  Cof- 

85  No  opinion.     Part  of  the  official  report  is  omitted. 

88  Part  of  the  opinion  is  omitted,  and  the  statement  of  facts  is  rewritten. 


Ch.  1)  VALUE. 

fin's  Beach,  and  are  paid,  the  title  to  the  schooner  vests  in  Murphy  and 
his  codefendant  as  of  the  time  when  they  took  possession  of  her,  and 
the  plaintiff's  right  of  action  against  Cabot  is  necessarily  discharged. 
If  damages  are  recovered  against  Cabot  for  the  full  value  of  the  hull, 
and  he  pays  them,  it  seems  that  these  damages  must  be  regarded  as 
a  satisfaction  pro  tanto  of  the  judgment  against  Power  and  IMurphy. 
Cabot  may  have  his  action  against  his  vendors  for  the  value  of  the 
hull  on  the  ground  of  an  implied  warranty  of  title,  if  there  were  such 
a  warranty,  but  that  is  immaterial  to  the  rights  of  action  of  the  plain- 
tiff     *     *     * 

But  if  there  be  an  exception  to  the  general  rule  of  damages,  when  an 
action  in  the  nature  of  trover  is  brought  against  a  purchaser  from  a 
conditional  vendee,  who  has  improved  the  property  while  in  his  pos- 
session, it  is  not  necessarily  applicable  to  these  cases,  because  here  the 
original  taking  was  tortious.  (In  replevin,  any  improvements  of  the 
property  attach  to  and  go  with  the  property  replevied.     In  trover, 
when  the  property  has  been  improved  in  value  after  the  conversion, 
the  form  of  the  action  does  not  render  it  necessary  that  damages 
should  be  given  for  the  improved  value;   and  the  general  principle  is 
that  the  damages  shall  compensate  the  plaintiff  for  what  he  has  lost ; 
rrhe  rule  of  confining  the  damages  to  the  time  of  the  conversion,  with 
interest  from  that  time,  has  been  adopted  in  this  commonwealth  as  the 
most  satisfactory^  and  many  difficulties  are  avoided^ which  arise  un- 
der any  other  rul^,  when  the  value  of  the  property  is  fluctuating,  or 
when  the  property  has  been  improved  in  value  or  changed  m  form  by 
the  wrongful  taker  after  the  conversion  and  before  the  trial.     In  the 
event  of  successive  conversions,  if  the  value  of  the  property  at  the 
time  of  the  first  conversion  were  always  taken  as  the  test  of  damages, 
then  it  might  often  happen  that  a  defendant  who  had  subsequently 
converted  the  property  would  be  held  to  pay  more  than  the  property 
was  worth  when  he  converted  it.    The  damages  caused  by  one  wrong 
would  be  measured  by  those  caused  by  another.     Kennedy  v.  Whit- 
well,  4  Pick.  466;    Stone  v.  Codman,  15  Pick.  297;    Greenfield  Bank 
V   Leavitt   17  Pick.  1,  28  Am.  Dec.  268.     Murphy  and  his  codefend- 
ant had  no  right  to  convey  to  Cabot,  as  against  the  plaintiff,  the  im- 
provements they  had  made  upon  the  hull,  and  as  the  title  continued 
in  the  plaintiff,  we  know  of  no  cases  which  decide  that,  under  the  cir- 
cumstances disclosed  in  these  exceptions, (Cabot  is  not  liab  e  m  dam- 
ao-es  for  the  market  value  of  the  hull  at  the  time  and  place  of  its 
conversion  by  him.    The  question  does  not  arise  whether  the  damages 
recoverable  against  Cabot  can  in  any  event  exceed  the  whole  amount 
of  damages  recoverable  against  Power  and  Murphy.     The  ruling  of 
the  court  upon  the  measure  of  damages  in  the  action  against  Cabot 

was  correct.  .       , 

The  remaining  question  is  the  measure  of  damages  in  the  action 
a-ainst  Power  and  Murphy.  These  defendants  converted  the  schooner 
as  she  lay  on  Coffin's  Beach  in  Annisquam  Harbor.    If  there  was  no 


344  COMPENSATORY   DAMAGES.  (Part    5 

market  for  such  a  vessel  at  Annisquam,  it  was  her  vahie  as  she  lay  there 
that  the  defendants  are  liable  to  pay.  But  in  determining  her  value 
there  by  her  value  elsewhere,  a  reasonable  allowance  must  be  made  "for 
the  probable  cost  of  getting  her  off,  repairing  her,  and  getting  her"  to 
market,  "less  also  a  reasonable  allowance  for  diminution  in  her  market 
value  on  account  of  having  been  ashore."  These  allowances  were  made. 
The  risks  and  chances  of  getting  her  afloat  and  getting  her  to  market 
must  also  be  taken  into  account.  If  there  was  no  market  at  Annis- 
quam, the  learned  justice  had  a  right  to  consider,  in  assessing  dam- 
ages, the  market  value  in  St.  John,  if  that  was  the  principal  market, 
or  one  of  the  principal  markets,  in  which  such  vessels  are  bought  and 
sold,  and  it  was  practicable  to  attempt  to  carry  her  there.  He  had  a 
right  also  to  consider  other  markets;  the  test  is  what  buyers  of  ves- 
sels, from  St.  John,  Boston,  or  other  ports,  would  pay  for  her  as  she 
lay  on  Coffin's  Beach,  if  all  the  facts  of  her  condition  were  known.  If 
there  were  no  direct  satisfactory  evidence  of  this,  and  the  court  was 
satisfied  that  St.  John  was  the  best  market,  and  that  it  was  practicable 
to  attempt  to  take  her  there,  her  market  value  when  taken  to  St.  John 
could  be  considered ;  but,  in  addition  to  the  allowance  made  from 
her  market  value  in  St.  John,  there  should  have  been  an  allowance  for 
the  fair  value  of  the  risks  of  getting  her  there.  If  she  were  properly 
repaired  for  the  voyage,  the  usual  rate  of  insurance  for  such  a  vessel 
on  such  a  voyage  would  be  evidence  of  the  value  of  the  risk  of  taking 
her  from  the  port  of  repair  to  St.  John.  Perhaps  a  fair  salvage  for 
getting  her  off  and  bringing  her  to  a  port  of  repair,  when  the  salvors 
would  be  entitled  to  nothing  except  out  of  the  property  saved,  would 
be  evidence  of  the  amount  of  the  allowance  to  be  made  for  the  risk 
and  cost  of  removing  her  to  such  a  port.  We  think  the  rule  of  dam- 
ages adopted  was  too  liberal  under  the  circumstances  stated  in  the  ex- 
ceptions, and  that  there  must  be  a  new  trial  in  the  second  action,  upon 
the  amount  of  damages  only.  Bourne  v.  Ashley,  1  Low.  27,  Fed.  Cas. 
No.  1,699;  Saunders  v.  Clark,  106  Mass.  331;  Coolidge  v.  Choate, 
11  Mete.  79.    *     *     * 


TRIGG  V.  CLAY. 

(Supreme  Court  of  Appeals  of  Virginia,  1S91.     88  Va.  330,  13  S.  E.  434,  29 

Am.  St.  Rep.  723.) 

The  defendants  had  agreed  to  deliver  500,000  feet  of  lumber  to 
plaintiffs,  who  were  known  to  them  to  be  lumber  merchants  at  Clinch- 
port,  Va.,  but  refused  to  keep  the  contract  upon  the  ground  that  they 
had  given  too  low  a  price.  There  was  no  market  for  lumber  at  Clinch- 
port,  nor  one  practically  near  enough  to  obtain  any.  The  plaintiffs,  re- 
lying on  defendants'  promise,  had  actually  placed  this  lumber  with 
their  customers  at  an  advance  of  $1,000.  The  commissioner  allowed 
the  plaintiffs  this  sum  and  damages. 


Lacy,  J.^^  *  *  *  (in  a  case  like  this,  with  such  circumstances 
as  we  have  here,  the  case  where  there  had  been  a  contract  to  resell  at 
an  agreed  price,  and  when  there  is  no  market  to  afford  a  surer  test,  the 
price  at  which  the  articles  were  bargained  to  a  purchaser  affords  the 
best  and  indeed  very  satisfactory  evidence  of  their  value]  *  *  * 
In  Wood's  Mayne  on  Damages,  §  22,  it  is  said:  "But,  if  they  [the 
goods]  cannot  be  purchased  for  want  of  a  market,  they  must  be  esti- 
mated in  some  other  way.  If  there  had  been  a  contract  to  resell  them, 
the  price  at  which  such  contract  was  made  will  be  evidence  of  their 
value."     *     *     * 

In  the  case  of  Culin  v.  Glass  Works,  108  Pa.  220,  it  is  said :  "Upon 
the  breach  of  a  contract  to  furnish  goods,  when  similar  goods  cannot 
be  purchased  in  the  market,  the  measure  of  damages  is  the  actual  loss 
sustained  by  the  purchaser  by  reason  of  the  nondelivery."  A  distinc- 
tion is  drawn  in  some  of  the  cases  between  a  resale  made  at  an  advance 
subsequent  to  a  contract  of  purchase  and  a  resale  made  at  an  advance 
before  the  contract  of  purchase,  which  was  known  to  the  seller  of  the 
goods.  Carpenter  v.  Bank,  119  111.  354,  10  N.  E.  18.  This  is  rather  a 
fanciful  distinction.  It  is  not  in  accord  with  the  ordinary  usages  of 
trade  that  a  dealer,  a  man  buying  to  sell  again,  should  disclose  his 
dealings  with  the  same  goods  at  a  profit  to  his  vendor.  But,  if  there 
were  any  sound  principle  upon  which  this  could  rest,  if  the  seller  could 
be  supposed  to  enter  into  his  contract  upon  the  basis  of  a  resale  in 
which  he  had  no  interest,  still,  in  this  case,  it  is  reasonable  to  suppose 
that  a  lumber  getter  selling  700,000  feet  of  lumber  to  a  dealer  in  lum- 
ber should  know  (1)  that  it  was  for  a  resale,  (2)  that  this  resale  was 
to  be  on  a  profit,  and  (3)  that  he  should  know  that  his  vendee  would  be 
damaged  to  the  amount  of  his  profit,  if  the  vendor  should  prove  faith- 
less. But  the  true  basis  of  the  general  rule  is  that  when  there  is  a 
market,  the  vendee  cannot  be  damaged,  except  in  the  difference  be- 
tween what  the  lumber  did  actually  cost  him  and  what  he  had  purchas- 
ed it  at  from  the  seller  to  him.  But  this  rule  can  have,  upon  reason, 
no  application  whatever  to  a  case  where  there  is  no  market,  (1)  be- 
cause the  disappointed  purchaser  cannot  buy  in  that  market  when 
there  is  no  market  to  buy  in,  and  (2)  because  the  market  price  cannot 
be  ascertained  when  there  is  no  market. 

Under  the  circumstances  of  this  case,  the  commissioner  ascertained 
the  true  and  just  amount  of  the  damages.     *     *     *  ss 

3  7  Part  of  the  opinion  is  omitted,  and  the  statement  of  facts  is  rewritten. 

38  See.  .ilso,  McHose  v.  Fulmer,  73  Pa.  36.5  (1S73) ;  France  v.  Gaudet.  U 
R.  G  Q.  B.  199  (1871) ;  Loescher  v.  Deisterberg,  26  111.  App.  520  (1S8S) ;  ThoJ 
V.  Henderson,  8  Q.  B.  Div.  457  (1881). 


346  COMPENSATORY  DAMAGES.  (Part 


McMAHON   V.   CITY  OF   DUBUQUE. 

(Supreme  Court  of  Iowa,  1808.     107  Iowa,  62,  77  N.  W.  517,  70  Am.  St.  Rep. 

143.) 

Action  for  damages  occasioned  by  a  fire  set  out  from  sparks  es- 
caping from  the  smokestack  of  a  steam  road  roller  owned  and  being 
operated  by  the  city  of  Dubuque  in  rolling  newly  laid  macadam  on 
one  of  its  streets  on  which  the  lots  of  plaintiff  abutted.  The  house 
thereon,  with  its  contents,  was  destroyed.  The  jury  returned  a  ver- 
dict for  the  plaintiff. 

Ladd,  J.®^  The  household  goods  and  wearing  apparel  of  the  plain- 
tiff and  his  family  were  destroyed.  These  had  been  used,  were  worn, 
and  somewhat  out  of  st)'le.  Such  property  has  no  recognized  market 
value,  and  recovery  must  be  based  on  its  actual  value.  Gere  v.  In- 
surance Co.,  67  Iowa,  273,  23  N.  W.  137,  25  N.  W.  159;  Clements 
V.  Railway  Co.,  74  Iowa,  442,  38  N.  W.  144.  To  ascertain  the  actual 
value,  it  was  proper  to  take  into  consideration  the  original  cost  of  the 
articles,  the  extent  of  their  use,  whether  worn  or  out  of  date,  their 
condition  at  the  time,  and  from  all  these  determine  what  they  were 
fairly  worth.  The  cost  alone  would  not  be  the  correct  criterion  for 
the  present  value,  but  it  would  be  difficult  to  estimate  the  value  of  such 
goods  except  by  reference  to  the  former  price,  in  connection  with 
wear,  depreciation,  change  in  style,  and  present  condition.  Luse  v. 
Jones,  39  N.  J.  Law,  707;  Railway  Co.  v.  Nicholson,  61  Tex.  550. 
*  *  *  The  evidence  was  received,  over  the  defendant's  objection, 
showing  the  actual  value  of  the  house  at  the  time  of  the  fire,  and,  it 
is  said,  this  does  not  furnish  the  true  basis  of  recovery.  The  funda- 
mental principle  in  all  actions  for  damages  is  that  just  compensation 
be  made  to  him  who  has  suffered  injury  from  another  in  his  person  or 
property,  and,  in  order  to  give  satisfaction,  measured  in  money,  such 
rules  are  formulated  as  are  thought  best  adopted  to  accomplish  this 
purpose.  A  distinction  has,  for  this  reason,  been  made  between  grow- 
ing crops,  shrubs,  and  trees,  whose  chief  value  is  because  of  their  con- 
nection with  the  soil  and  their  incidental  enhancement  of  the  value  of 
the  land,  and  those  improvements  which  may  be  replaced  at  will,  and 
whose  value  may  readily  be  determined,  apart  from  the  ground  on 
which  they  rest.  It  is  thus  put  by  Mr.  Sutherland  in  his  work  on  Dam- 
ages (volume  3,  p.  368)  :  "If  the  thing  destroyed,  although  it  is  a 
part  of  the  realty,  has  a  value  which  can  be  accurately  measured  and 
ascertained  without  reference  to  the  soil  on  which  it  stands,  or  out 
of  which  it  grows,  the  recovery  may  be  the  value  of  the  thing  thus 
destroyed,  and  not  for  the  difference  in  value  of  the  land  before  and 
after  such  destruction."  In  Drake  v.  Railway  Co.,  63  Iowa,  310,  19  N. 
W.  215,  50  Am.  Rep.  746,  crops  were  destroyed  by  overflow  caused 
by  an  embankment,  and  the  measure  was  held  to  be  the  difference 

3  9  Part  of  the  opiuion  is  omitted. 


Ch.  1)  VALUB. 


347 


between  the  market  value  of  the  land  immediately  before  and  after 
the  injury.     This  rule  was  approved  in  SuUens  v.  Railway  Co.,  74 
Iowa,  UGO,  38  N.  W.  545,  7  Am.  St.  Rep.  501,  and  applied,  where  grow- 
ing trees  were  burned,  in  Greenfield  v.  Railway  Co.,  83  Iowa,  2TG,  49 
N.  W.  95,  and  Brooks  v.  Railway  Co.,  73  Iowa,  182,  34  N.  W.  805. 
See  Smith  v.  Railroad  Co.,  38  Iowa,  518;   Striegel  v.  Moore,  55  Iowa, 
88,  7  N.  W.  413.    In  Rowe  v.  Railway  Co.,  102  Iowa,  288,  71  N.  W. 
410,  the  court  said :   "Appellant's  contention  results  in  fixing  the  value 
of  each  tree  destroyed  or  damaged  by  the  fire,  and  the  aggregate  of 
such  values  would  be  the  measure  of  plaintiff's  recovery.     Such  a  rule 
may  well  be  held  applicable  to  the  destruction  by  fire  of  buildings, 
fences,  and  other  improvements,  which  may  at  once  be  replaced,  where 
the  exact  cost  of  restoring  the  property  destroyed  is  capable  of  defi- 
nite ascertainment,  and  where  there  is  no  damage  of  the  realty  itself." 
It  is  apparent  that  the  growing  crops,  small  trees,  and  orchards  are 
of  little  or  no  use  separated  from  the  soil,  and  that  their  value  must 
necessarily  be  determined  in  connection  with  the  land  on  which  they 
stand.     This  is  not  true  of  improvements  which  may  be  replaced  at 
will.     In  Graessle  v.  Carpenter,  70  Iowa,  167,  30  N.  W.  392,  the  de- 
fendant, by  digging  trenches  and  laying  water  pipes,  injured  the  plain- 
tiff's fences,  walks,  house,  and  shrubs.     It  was  not  shown  the  acts 
were  of  such  a  nature  as  to  permanently  injure  the  real  estate,  or  that 
it  could  not  be  restored  to  its  condition  before  the  fire.     The  court, 
through  Beck,  J.,  announced  the  rule  to  be  that  which  will  "give  the 
plaintiff  just  and   full  compensation.     *     *     *     Jn  the   case   before 
us  the  familiar  and  simple  rule  applicable  to  such  cases  would  per- 
fectly attain  that  end.     That  rule  is  this:  (The  plaintiff  may  recover 
as  damage  the  sum  which,  expended  for  the  purpose,  would  put  the 
property  in  as  good  condition  as  it  was  in  before  the  injury,  with  the 
additional  sums  which  would  compensate  the  plaintiff  for  the  use  and 
enjoyment  of  the  property,  should  he  be  deprived  thereof  by  the  in- 
jury, and  the  value  of  such  property,  as  trees,  buildings,  and  the  like, 
which  have  been  wholly  destroyed,  and  cannot  be  restored  to  the  con- 
dition they  were  in  before  the  injury^f'     We  take  it,  the  trees  and 
shrubs  were  of  a  character  which  might  be  replaced  by  others  of  the 
same  actual  value;    otherwise  the  case  is  not  in  harmony  with  those 
cited.    In  Freeland  v.  City  of  Muscatine,  9  Iowa,  465,  the  defendant, 
in  changing  the  grade,  dug  away  the  dirt,  and  caused  the  plaintiff's 
house  to  fall,  and  it  was  held:    "The  cost  of  rebuilding  or  repairing 
was  properly  taken  into  consideration,  if  we  understand  it  as  having 
reference  to  the  quality  and  condition  of  the  building  before  the  ac- 
cident, and  the  instruction  cannot  be  taken  in  any  other  sense.     It  is 
the  cost  of  rebuilding  and  repairing,  which  implies  the  restoring  it 
to  as  good  a  condition  as  before,  and  not  the  putting  a  new  and  firm 
building  in  the  place  of  an  old  and  decayed  one."    To  prove  the  market 
value  of  the  land  immediately  before  and  after  the  fire  would  be  accom- 
plishing, by  circumlocution,  what  might  be  directly  ascertained,   for 


348  COMPENSATORY  DAMAGES.  (Part    5 

such  difference  would  be  the  value  of  the  house.  True,  location  may 
sometimes  have  a  bearing,  as  where  a  building  is  so  situated  as  not  to 
be  useful  for  the  purpose  of  its  construction.  In  such  cases  this  must 
be  taken  into  consideration  in  fixing  the  real  value.  But  it  could  be 
as  readily  done  in  estimating  this  separate  from  as  with  the  land. 
Simplicity  and  directness  are  particularly  favored  in  modern  juris- 
prudence. True,  such  property  may  have  no  market  value.  It  does, 
however,  have  actual  value,  and  this  is  then  the  measure  of  recovery. 
The  ruling  was  right.     *     *     * 


BATEMAN   et   ux.   v.   RYDER. 

(Supreme  Court  of  Tennessee,  1901.     106  Tenn.  712,  64  S.  W.  48,  82  Am.  St. 

Rep.  910.) 

Wilkes,  J.*"  This  is  an  action  of  trover  brought  by  a  mother 
against  her  daughter  and  her  husband  for  the  conversion  of  a  guitar, 
four  pictures,  and  a  trunk  containing  clothing  and  manuscripts  of 
prose  and  poetry  composed  by  the  plaintiff's  former  husband.  The  ac- 
tion was  commenced  before  a  justice  of  the  peace,  and  the  damages 
were  laid  at  $500.  There  was  a  trial  before  the  court  and  a  jury,  on 
appeal  from  the  justice,  when  there  were  verdict  and  judgment  for 
$200,  and  defendants  have  appealed  to  this  court. 

The  first  three  assignments  go  to  the  measure  of  damages.  Testi- 
mony was  admitted  to  show  a  special  value  to  plaintiff  of  the  articles 
because  they  were  gifts  from  her  former  husband,  and  because  of  the 
associations  connected  with  them.  It  is  said  this  was  erroneous.  It 
is  said  the  court  charged  the  jury  that,  in  fixing  the  value  of  the. prop- 
erty, they  should  consider  the  plaintiff's  relations  to  the  same.i  What 
the  court  did  charge  on  this  point  was  "that  the  jury  must  determine 
from  all  the  evidence  on  that  point  what  would  be  a  fair  and  reason- 
able value  for  the  property,  considering  plaintiff's  relation  to  the  same 
and  the  rights  of  property."  The  court,  upon  request,  refused  to 
charge  that,  the  action  being  in  trover  for  the  conversion  of  property, 
the  measure  of  damages  was  the  actual  value  of  the  property.  These 
assigments  may  all  be  treated  together. 

In  actions  of  trover  for  the  conversion  of  personal  property,  as  a 
general  rule  the  measure  of  damages  is  the  market  or  actual  value  of 
the  property  at  the  date  of  the  conversion.  26  Am.  &  Eng.  Enc. 
Law,  818,  and  authorities  there  cited.  But  damages  beyond  the  ac- 
tual value  of  the  property  converted  have  been  allowed  the  plamtiff 
when  he  has  been  subjected  to  some  special  loss  or  injury.  Id.  849. 
"One  criterion  of  damages  is  the  actual  value  to  him  who  owns  it, 
and  this  is  the  rule  when  the  property  is  chiefly  or  exclusively  valuable 
to  him ;   such  articles,  for  instance,  as  family  pictures,  plate,  and  heir- 

4  0  Part  of  the  opinion  is  omitted. 


Ch.  1)  VALUE.  349 

looms.  These  should  be  valued  with  reasonable  consideration  of,  a^nd 
sympathy  with,  the  feelings  of  the  owner."  3  Suth.  Dam.  p.  476; 
Suydam  v.  Jenkins,  3  Sandf.  (N.  Y.)  G20 ;  Spicer  v.  Waters,  65 
Barb.  (N.  Y.)  227.  In  Hale,  Dam.  p.  182,  §  76,  it  is  said:  "When 
property  has  a  peculiar  value  to  the  owner,  such  as  it  has  to  no  other 
person,  or  when  it  cannot  be  exactly  replaced  by  other  goods  of  like 
kind,  the  actual  value  to  the  owner,  and  not  the  market  value,  is  the 
measure  of  compensation." 

The  testimony  shows  that  the  four  pictures  were  oil  paintings  bought 
in  Italy  by  the  plaintiffs  husband  at  a  cost  of  $500,  and  presented  to 
her  while  traveling,  and  were  valuable  intrinsically  as  well  as  from 
association ;  that  the  original  cost  of  the  guitar  was  $50,  and  it  was 
highly  prized  for  its  associations;  that  there  was  some  considerable 
clothing  in  the  trunk,  besides  a  lot  of  manuscript  productions,  in  prose 
and  verse,  of  plaintiff's  husband,  which  had  never  been  published,  and 
probably  could  not  be  reproduced.  There  is  evidence,  on  the  other 
hand  that  the  pictures  were  not  well  preserved ;  that  their  frames  were 
dilapidated;  that  they  would  probably  bring  about  $20  at  auction,  and 
that  the  guitar  would  perhaps  sell  for  $5 ;  that  the  clothing  was  worn 
and  old,  and  of  no  real  value ;  and  that  the  manuscripts  were  of  no  val- 
ue whatever.  We  think  the  court  gave  the  proper  instructions  as  to  the 
feature  of  damages,  and,  while  we  would  have  been  better  satisfied 
with  a  smaller  judgment,  there  is  ample  evidence  to  support  the  amount 
given.     *     *     *  *^ 


JACKSONVILLE,    T.    &    K.    W.    RY.    CO.    v.    PENINSULAR 

LAND,    TRANSP.    &  MFG.    CO. 

(Supreme  Court  of  Florida,  3891.     27  Fla.  1,  9  South.  661,  17  L.  R.  A.  33.) 

The  declaration  averred  a  negligent  destruction  of  property  in 
Tavares  Fla.,  to  wit,  a  hotel,  two  stores,  a  livery  stable,  five  cottages, 
and  personal  property,  all  to  the  value  of  $72,100,  by  reason  of  a  fire 
caused  by  the  escape  of  sparks  from  defendant's  locomotives. 

Raney,  C.  J."  *  *  *  Wherever  there  is  a  well-known  or  fixed 
market  price  for  any  property,  the  value  of  which  is  in  controversy,  it 
is  proper,  in  establishing  the  value,  to  prove  such  market  value ;  but, 
in  order  to  say  of  a  thing  that  it  has  a  market  value,  it  is  necessary  that 
there  shall  be  a  market  for  such  commodity;  that  is,  a  demand  there- 
for—an ability,  from  such  demand,  to  sell  the  same  when  a  sale  there- 
of is  desired.  Where,  therefore,  there  is  no  demand  for  a  thing— no 
ability  to  sell  the  same— then  it  cannot  be  said  to  have  a  market  val- 
ue "at  a  time  when,  and  at  a  place  where,"  there  is  no  market  for  the 

41  See  Fairfax  v.  N.  Y.  C.  &  H.  R.  R..  73  N.  Y.  167,  29  Am.  Rep.  119  (1878). 
and  Her  v.  Balcer.  82  Mich.  226,  46  N.  W.  377  (1800). 

4  2  Part  of  the  opinion  is  omitted,  and  the  statement  of  facts  is  rewritten. 


350  COMPENSATORY  DAMAGES.  (Part    5 

same.  We  think  it  would  have  been  a  very  harsh  rule  in  a  case  like 
this  to  have  confined  the  plaintiff  to  proof  of  the  market  value  of  the 
property  at  the  time  and  place  of  its  destruction,  in  the  absence  of 
proof  that  at  the  time  and  place  of  such  destruction  there  was  a  market 
for  such  property.  In  cases  where  property  is  of  a  well-known  kind 
in  general  use,  having  a  recognized  standard  value,  it  is  not  proper 
to  circumscribe  the  proof  of  such  value  within  the  limits  of  the  mar- 
ket demand  at  the  time  when,  and  at  the  place  where,  it  was  destroyed. 
Were  the  rule  contended  for  to  prevail,  then  the  compensation  for 
personal  properties,  confessedly  worth  thousands  of  dollars,  would 
be  reduced  to  a  pittance  in  cents  if  destroyed  en  route  from  market 
to  market,  in  a  thinly-settled,  barren  country  where  there  was  no  de- 
mand, simply  because  of  the  accident  of  "time  and  place"  of  its  de- 
struction. In  actions  of  this  kind,  where  the  value  of  the  properties 
destroyed  is  the  criterion  of  the  amount  of  damage  to  be  awarded, 
and  the  property  destroyed  has  no  market  value  at  the  place  of  its 
destruction,  then  all  such  pertinent  facts  and  circumstances  are  ad- 
missible in  evidence  that  tend  to  establish  its  real  and  ordinary  value 
at  the  time  of  its  destruction ; ''such  facts  as  will  furnish  the  jury,  who 
alone  determine  the  amount,  with  such  pertinent  data  as  will  enable 
them  reasonably  and  intelligently  to  arrive  at  a  fair  valuation;  and 
to  this  end  the  original  market  cost  of  the  property;  the  manner  in 
which  it  has  been  used ;  its  general  condition  and  quality ;  the  percent- 
age of  its  depreciation  since  its  purchase  or  erection,  from  use,  dam- 
age, age,  decay,  or  otherwise — are  all  elements  of  proof  proper  to  be 
submitted  to  the  jury  to  aid  them  in  ascertaining  its  value.  And  to 
establish  value  in  such  cases  the  opinions  of  witnesses  acquainted  with 
the  standard  value  of  such  properties  are  properly  admissible 
*     *     * 

Judge  Cooley,  in  Insurance  Co.  v.  Horton,  28  Mich.  175,  in  speal- 
ing  of  evidence  based  on  a  knowledge  of  the  purchase  price  of  prop- 
erty, says:  "The  objection  that  the  daughter  of  the  plaintiff  was  ai 
lowed  to  testify  to  the  value  of  articles  burned,  without  having  been 
shown  to  possess  the  proper  knowledge  to  qualify  her  to  speak  as  an 
expert,  was  not  well  taken.  She  testified  that  she  bought  a  good  many 
of  the  articles.     *     *     *" 

The  amount  which  it  would  have  cost  to  erect  buildings  of  the  same 
kind  on  the  day  of  the  fire,  less  a  proper  deduction  for  deterioration 
is  not  the  proper  measure  of  damages  in  a  case  of  this  kind.     *     *     » 

The  value  of  the  property  at  the  time  and  place  of  the  fire  is  the 
question  the  jury  is  to  pass  upon.  This  the  court  charged,  and  th^ 
plaintiff  admitted.  Market  value  is  what  a  thing  will  sell  for.  Rail 
road  Co.  v.  Bunnell,  81  Pa.  414.  To  make  a  market,  however,  there 
must  be  buying  and  selling.  Blydenburgh  v.  Welsh,  1  Baldw.  340. 
Property  may  have  a  value  for  which  the  owner  may  recover  if  it  be 
destroyed,  although  it  have  no  market  value.  Railroad  Co.  v.  Stan- 
ford, i2  Kan.  354,  380,  15  Am.  Rep.  362.    "Suppose,"  asks  the  court 


Ch.  1)  VALUE.  3d1 

in  the  case  just  cited,  "a  rod  of  railway  track,  or  a  shade  tree,  or  a 
fresco  painting  on  the  walls  or  ceiling  of  a  house,  or  a  bushel  of  corn 
on  the  western  plains,  should  be  destroyed,  could  there  be  no  recovery 
for  these  articles  simply  because  there  might  be  no  actual  market  val- 
ue for  the  same?"  To  fix  the  market  value  of  a  thing,  it  seems  to  us 
that  there  must  be  a  selling  of  things  of  the  same  kind.  If  there  had 
ever  been  a  sale  of  an  hotel,  or  of  any  other  building,  in  Tavares,  we 
are  not  informed;  and  we  have  no  judicial  knowledge,  nor  does  the 
record  inform  us,  that  hotels  have  a  market  value  there.  Yet,  though 
there  is  no  market  value  or  standard  value,  the  plaintiff  should  not  be 
allowed  more  than  the  property  destroyed  by  fire  on  the  9th  of  April, 
1888,  w^as  reasonably  worth  in  Tavares.  To  do  this  it  is  proper  to 
invoke  the  aid  of  all  "facts  calculated  to  show  its  value,  and  we  are  un- 
able to  perceive  that  the  circuit  judge  erred  in  admitting  the  evidence 
of  the  cost  of  replacing  the  building  on  the  day  of  the  fire.  It  was  a 
fact  tending  to  show,  and  to  be  considered  with  others,  by  the  jury 
in  determining  what  amount  of  money  would  put  the  plaintiff  in  the 
position  in  which  he  was  at  the  time.     *     *     * 

Recourse  may  be  had  to  the  items  of  cost,  and  its  utility  and  use. 
2  Suth.  Dam.  378.  In  Luse  v.  Jones,  39  N.  J.  Law,  707,  the  plaintiff 
was  permitted  to  show  the  cost  of  a  bedstead  as  tending  to  prove  its 
value.  This  cost  was  the  price  at  which  a  regular  dealer  in  such  ar- 
ticles had  sold  it  when  new  in  the  ordinary  course  of  trade.  "A  sale 
so  made,"  said  the  court,  "was  evidence  of  the  market  value  of  the 
thing  when  new,  and  the  value  of  such  goods  when  worn  can  scarce- 
ly be  ascertained  except  by  reference  to  the  former  price,  and  the  ex- 
tent of  the  depreciation.  Of  course,  the  cost  alone  would  not  be  a  just 
criterion  of  the  present  value,  but  it  would  constitute  one  element  in 
such  a  criterion,  and  the  attention  of  the  jury  in  this  case  \vas  clear- 
ly directed  to  the  importance  which  it  deserved  to  have."  See,  also, 
Sullivan  v.  Lear,  23  Fla.  463,  474,  2  South.  84G,  11  Am.  St.  Rep.  388. 
In  Whipple  v.  Walpole,  10  N.  H.  130,  it  was  held  it  was  admissible 
to  prove  what  horses  like  those  lost  or  injured  cost  at  a  town  near  the 
place  where  the  loss  occurred.  Upon  the  same  principle,  and  for  even 
stronger  reasons,  we  think  that  the  cost  of  restitution  at  the  time  of 
the  destruction  of  the  building  was  an  element  which  might  be  con- 
sidered by  the  jury  with  others  in  ascertaining  value.     *     *     * 

Upon  the  question  of  the  allowance  of  interest  as  matter  of  right 
upon  the  amount  of  damages  found  by  the  jury,  from  the  date  of  the 
destruction  of  the  property  in  cases  like  this  where  the  damages  sued 
for  are  unliquidated,  the  following  authorities,  with  others  that  we  have 
examined,  hold,  in  effect,  "that  the  jury  may,  at  their  discretion,  allow 
and  include  interest  in  their  verdict  as  damages,  but  not  as  interest  eo 
nomine:"  2  Sedg.  Meas.  Dam.  p.  190;  authorities  cited  in  note  to 
Shelleck  v.  French,  6  Am.  Dec.  196;  Black  v.  Transportation  Co.,  45 
Barb.  (N.  Y.)  40;  Railroad  Co.  v.  Sears,  66  Ga.  499;  Lincoln  v. 
Claflin,  7  Wall.  132,  19  L.  Ed.  106 ;   Garrett  v.  Railway  Co.,  36  Iowa, 


352  COMPENSATORY   DAMAGES.  (Part    5 

121;  Brady  v.  Wilcoxson,  44  Cal.  239.  In  all  these  authorities  no 
other  reason  is  given  for  this  rule  than  that  it  has  been  so  held  in  other 
cases  that  have  gone  before  them,  except  that  in  a  few  cases  it  is  put 
upon  the  ground  that  where  property  is  wrongfully  taken  and  with- 
held, the  defendant  gets  the  benefit  of  its  use  during  the  detention,  and 
is  required  to  pay  interest  as  compensation  for  such  use,  when  in 
cases  of  property  wrongfully  destroyed  the  defendant  derives  no 
benefit  therefrom.  The  answer  to  this  theory  is  that,  in  cases  of  this 
kind  for  the  negligent  and  wrongful  destruction  of  property,  the  is- 
sue as  to  the  amount  of  the  compensation  does  not  depend  upon  bene- 
fits that  accrued  therefrom  to  the  defendant,  whose  negligent  act 
brought  about  the  destruction;  but  the  issue  rests  wholly  upon  the 
question  as  to  what  is  the  sum  of  the  damage  to  the  party  whose  prop- 
erty has  been  destroyed.  Neither  do  we  think  this  theory  can  properly 
be  applied  even  in  cases  of  trespass  and  trover.  ^  Interest  on  the  value 
of  the  property  taken  in  those  cases  cannot  correctly  be  said  to  be  al- 
lowed to  the  plaintiff  "because  the  defendant  derives  benefit  from  the 
use  of  the  property,"  but  is  allowed  to  the  plaintiff  to  compensate  him 
for  his  deprivation  of  its  use  during  the  detention  thereof.     *     *     *  43 


McGregor  et  ai.  v.  kilgore. 

(Supreme  Court  of  Ohio,  1834.     6  Ohio,  359,  27  Am.  Dec.  2G0.) 

The  action  was  case  upon  a  bill  of  lading,  dated  July  5,  1832,  for 
certain  parcels  of  merchandise  consigned  to  the  plaintiffs,  shipped  on 
board  the  steamboat  Chesapeake,  to  be  delivered  at  Cincinnati  in  good 
order  (the  danger  of  the  river  alone  excepted);  "but  in  case  of  the 
water  not  admitting  the  boat  to  proceed  to  Louisville,  the  owners  of 
the  goods  to  pay  the  expense  of  reshipping  to  that  place  from  the  point 
where  they  are  reshipped,  and  the  captain  agrees  they  shall  be  for- 
warded without  any  delay."  Breach,  that  through  the  carelessness 
and  negligence  of  the  defendant,  the  goods  were  lost. 

Plea,  not  guilty;  notice  that  the  low  water  would  not  permit  the 
boat  to  go  up  to  Louisville,  and,  therefore,  the  goods  were  landed  at 
Trinity,  near  the  mouth  of  the  Ohio,  and  were  injured  after  they  were 
so  landed.  The  jury  found  that  the  goods  were  landed  at  Trinity,  at 
the  mouth  of  the  Ohio,  and  left  in  charge  of  the  defendant — the  boat 
having  returned  to  New  Orleans — were  placed  under  a  temporary 
shed  erected  for  the  purpose,  near  the  river,  and  several  days  after- 
ward, while  the  boat  hands  were  attempting  to  remove  them  to  another 
place  of  deposit  adjoining,  the  cask,  being  large  and  heavy,  slipped 
away  from  the  workmen,  and  rolled  into  the  Ohio  river,  and  damaged 
the  goods  by  the  wetting. 

43  As  to  method  of  computing  value  of  converted  negotiable  instruments, 
see  Griggs  v.  Day,  136  N.  Y.  152,  32  N.  E.  612,  18  L.  R.  A.  120,  32  Aiu.  St 
Rep.  704  (1S92). 


Ch.  1)  VALUE. 


353 


Wright,  J.**  *  *  *  The  goods  were  delivered  at  Cincinnati  in 
an  injured  condition.  The  carrier  earned  full  freight  for  their  trans- 
portation. It  would  seem  to  be  the  dictate  of  natural  justice  that  the 
person  liable  for  their  safe  delivery  should  make  good  to  the  owner  the 
injury  they  sustained  while  under  his  care  and  control.  The  owner  was 
entitled  to  the  goods  at  Cincinnati  in  their  perfect  state.  But  for  the  act 
of  the  defendant  he  would  have  had  them  in  that  condition.  The  car- 
rier, in  case  he  deliver  the  goods  at  the  port  of  delivery,  earns,  and  is 
entitled  to  demand  full  freights,  notwithstanding  they  have  been  par- 
tially injured,  and  the  consignee  must  look  to  his  bill  of  lading  for  in- 
demnity. In  New  York  the  rule  is  established  that  the  measure  of 
damage  is  the  value  of  the  goods  at  the  port  of  delivery.  Amory  v. 
McGregor,  15  Johns.  38,  8  Am.  Dec.  205  ;  Bracket  v.  McNair,  1-i  Johns. 
171,  7  Am.  Dec.  4-i7.  The  Supreme  Court  of  Pennsylvania,  upon  full 
examination,  held  it  best  to  remove  from  the  carrier  all  temptations  to 
fraud,  and  that  was  best  done  by  making  him  liable  for  the  value  of 
goods  lost  at  the  place  of  delivery,  and  established  that  as  the  rule  of 
damages  in  such  cases,  founded  upon  authority,  general  convenience, 
and  good  policy.  Gillingham  v.  Dempsey,  12  Serg.  &  R.  186.  These 
authorities  are  not  shaken  by  those  cited  by  the  defendant.  We  think 
this  is  obviously  the  rule  of  law  and  justice.  The  jury  have  returned 
two  valuations  looking  to  this  point : 

(1)  The  value,  adding  sixty  per  cent,  to  the  sterling  cost,  as  the 
usual  mercantile  estimate  in  Cincinnati,  to  cover  the  charges,  freight, 
and  insurance  from  Liverpool. 

(2)  The  actual  value  of  the  goods  in  Cincinnati,  deducting  there- 
from the  proceeds  of  the  goods,  sold  in  their  injured  condition. 

Which  of  these  furnishes  the  rule  of  damages  is  the  question? 
The  first  is  the  usual  mode  of  ascertaining  the  net  cost  of  such  goods 
in  Cincinnati.  In  the  absence  of  other  evidence,  that  would  be  taken 
as  the  value  of  the  goods.  But  when  the  actual  value  is  found,  the 
supposed  or  presumed  value  yields.  That  is  the  case  here,  the  jury 
have  assessed  the  damages,  as  predicated  on  the  actual,  as  well  as  the 
supposed  value,  the  actual  value  measures  the  real  injury,  and  is  the 
rule  of  damage.     *     *     *  *' 

4*  Part  of  the  opinion  is  omitted. 

4  5  That  the  measure  of  damages  against  a  carrier  for  failure  to  deliver 
goods  is  the  value  thereof  at  the  place  of  delivery  at  the  time  delivery  should 
have  been  made,  see,  further,  C  &  N.  W.  Ry.  Co.  v.  Dickinson,  74  111.  249  (1S74) ; 
Spring  V.  Haskell,  4  Allen  (Mass.)  112  (18G2) ;  Watkinson  v.  Laughton,  8 
Johns.  (N.  Y.)  213  (1811),  post,  p.  600;  Brandt  v.  Bowlby,  2  Barn  &  Adol. 
932  (1831) ;  Smith  v.  Griffith,  3  Hill  (N.  Y.)  333,  38  Am.  Dec.  639  (1842),  ante, 
p.  334. 

GII.B.DAM.— 23 


354  COMPENSATORY   DAMAGES.  (Part    5 

MONTANA   RY.   CO.   v.   WARREN. 

(Supreme  Court  of  Montana,  1887.     6  Mont.  275,  12  Pac.  641.) 

Bach,  J.*^  This  action  was  commenced  by  a  petition,  upon  which 
commissioners  were  appointed  to  assess  the  value  of  certain  lands  ly- 
ing in  Silver  Bow  county,  and  belonging  to  the  respondents,  over  which 
lands  the  appellant  sought  to  obtain  an  easement  for  the  purpose  of 
constructing  a  railroad.  The  land  mentioned  in  the  petition  was  a 
mining  claim,  known  as  the  "Nipper  Lode" — a  claim  undeveloped,  but 
upon  which  there  were  several  shafts,  one  41  feet  deep,  another  20 
feet  deep.  In  fact,  the  property  was  of  that  description  generally 
known  as  a  "prospect."     *     *     * 

Does  the  fact  that  the  Nipper  lode  had  produced  no  return  justify 
the  legal  conclusion  that  that  property  has  no  legal  value,  as  is  claimed 
by  appellant  to  be  the  rule  of  law?  A  vacant  lot  in  a  large  city  "pro- 
duces no  return."  Any  return  therefrom  in  the  future  must  be  a  mat- 
ter of  speculation — a  speculation  depending,  among  other  things,  upon 
the  nature  and  size  of  the  house  which  is  still  to  be  built,  and  the  rent 
that  can  be  obtained  from  a  lease  thereof,  if  it  ever  can  be  leased.  If 
we  should  apply,  in  such  a  case,  the  rule  invoked  by  appellant,  there 
would  be  no  value  assignable  to  a  property  which,  as  a  matter  of  fact, 
may  be  immensely  valuable.  What,  then,  is  the  value  of  such  a  lot? 
It  is  its  market  value — the  price  which  it  would  bring  in  a  fair  mar- 
ket— which  price  may  be  established  by  competent  witnesses,  who 
know  the  character  and  situation  and  usefulness  of  that  property. 

Under  certain  circumstances  a  stream  of  water  flowing  through  land 
makes  that  land  valuable,  because  of  the  power  to  be  derived  therefrom, 
or  because  of  the  possibility  of  irrigation,  as  in  this  country.  There 
may  be  no  mill.  There  may  have  been  no  attempt  to  use  that  water 
for  the  purposes  of  irrigation.  Still  those  are  qualities  or  character- 
istics which  may,  under  certain  circumstances,  enhance  the  present 
market  value  of  that  property,  with  a  mill,  or  when  irrigated  and  cul- 
tivated. That  would  be  speculation.  The  question  is,  what  effect  have 
these  circumstances  upon  the  opinion  of  the  community?  How  do  they 
affect  the  market  value?  A  man  may  have  property  well  situated  to 
a  certain  purpose — such  as  a  mill  site,  or  as  a  farm,  or  as  a  residence 
or  store,  or  as  a  mine — and  he  may  refuse  to  use  it  for  any  one  of 
those  purposes  to  which  it  is  best  suited.  Still  he  may  sell  it  in  open 
market  to  a  purchaser  whose  opinion  of  its  present  market  value  is 
based  upon  the  future  use  to  which  it  may  be  put.  Still  he  may  claim, 
in  any  proceeding  to  condemn  that  land,  the  market  value  thereof,  as 
that  value  is  fixed  by  the  public  for  those  purposes. 

The  difference  between  such  a  valuation  and  speculation  seems  clear. 
Land  never  used  by  its  owner  for  any  purpose  is  sought  to  be  con- 

*8  Part  of  the  opinion  is  omitted. 


Va'' 


Ch.  1)  VALUE.  355 

dcnincd.  The  fertility  of  the  soil  is  one  of  the  characteristics  or  prop- 
erties of  that  land.  It  has  never  produced  any  returns;  but  there  is 
no  attempt  to  prove  future  productions.  They  are  speculative.  The 
fertility  of  the  soil  is  a  fact — a  fact  which  in  some  cases  may  add 
great  value  to  the  property,  and  may  be  one  of  the  constituents  of  the 
market  price.  See  Boom  Co.  v.  Patterson,  98  U.  S.  403,  25  L.  Ed.  206. 
The  court  says  (98  U.  S.  407,  25  L.  Ed.  208):  "In  determining  the 
value  of  land  appropriated  for  public  purposes,  the  same  considera- 
tions are  to  be  regarded  as  in  a  sale  of  property  between  private  par- 
ties. The  inquiry  in  such  cases  must  be,  what  is  the  property  worth 
in  the  market,  viewed,  not  merely  with  reference  to  the  uses  to  which  it 
is  at  the  time  applied,  but  with  reference  to  the  uses  to  which  it  is  plain- 
ly adapted ;  that  is  to  say,  what  is  it  worth  from  its  availability  for 
valuable  uses?  Property  is  not  to  be  deemed  worthless  because  the 
owner  allows  it  to  go  to  waste,  or  to  be  regarded  as  valueless  because 
he  is  unable  to  put  it  to  any  use.  Its  capability  of  being  made  thus 
available  gives  it  a  market  value  which  can  be  readily  estimated."  And 
the  court  cites  with  approval  Young  v.  Harrison,  17  Ga.  30,  in  which 
case  the  value  of  farming  land  at  a  bridge  site  was  allowed  to  be 
proved. 

In  Boom  Co.  v.  Patterson,  just  above  cited,  the  value  of  land  on  ac- 
count of  its  availability  for  building  a  boom  across  a  river  was  allow- 
ed to  be  proved.  In  the  one  case  there  was  no  bridge ;  in  the  other 
there  was  no  boom.  The  value  of  those  lands,  if  a  bridge  or  boom 
was  built,  was  a  matter  of  speculation ;  but  the  present  market  value 
of  those  lands  was  more  or  less  dependent  upon  the  fact  that  they 
might  be  put  to  such  uses.  That  was  fact.  See,  also,  the  other  au- 
thorities in  case  of  Boom  Co.  v.  Patterson. 

So  with  a  "prospect."  It  certainly  has  value  in  the  market.  What 
is  the  characteristic  of  the  prospect?  If  ore  has  been  found,  that  fact 
is  an  element  of  value.  It  is  the  "fertility"  of  that  piece  of  property. 
The  value  will  increase  as  the  prospect  becomes  more  developed ;  but, 
as  soon  as  a  vein  of  ore  is  found  in  land  in  a  mining  district,  it  places 
a  market  value  upon  that  land,  greater  or  less,  owing,  as  in  all  cases, 
to  circumstances.  That  fact  is  as  certain  an  element  of  price  as  is  the 
fertility  of  the  soil,  the  situation,  chances  for  a  mill-site,  or,  in  case  of 
a  well-developed  mine,  the  possibility  of  future  production  of  ore.  In 
what  respect  does  a  prospect  differ  from  a  mine,  except  the  fact  that 
ore  has  been  taken  from  the  latter  in  large  quantities  ?  Can  it  be  said 
of  a  mine  that  it  will  continue  to  produce  valuable  ores  with  any  great- 
er certainty  than  it  can  be  said  of  a  well-developed  prospect  that  it 
will  produce  valuable  ores?  Future  profits  are  a  matter  of  uncertainty 
in  the  one  case  as  well  as  in  the  other.  In  fact,  the  only  distinction 
is  that  the  mine  is  poorer  than  it  was  as  a  prospect  because  o^f  the  ex- 
traction of  valuable  ore  once  contained  therein.  Land  adjacent  to 
a  well-known  mine  has  a  market  value  greater  or  less,  depending 
whether  it  lies  on  or  off  the  vein.    In  one  case  its  present  value  depends 


356  COMPENSATORY  DAMAGES.  (Part    5 

upon  its  mineral  character ;  in  the  other  case,  upon  its  adaptabiHty  for 
a  dump,  or  for  building  purposes.  As  has  been  already  said,  a  pros- 
pect is  more  a  matter  of  speculation  than  is  a  mine  from  which  ore 
has  been  taken.  The  future  of  each  is  equally  uncertain.  The  value 
of  each  is  to  be  ascertained  in  the  same  way,  viz.,  under  all  the  cir- 
cumstances, what  is  the  market  value?     *     *     *  4t 


(B)   Fluctuations  in   Value. 
SHEPHERD  V.  JOHNSON. 

(Court  of  King's  Bench,  1802.     2  East,  211.) 

This  was  a  writ  of  inquiry  to  assess  damages  on  a  bond  given  by 
the  defendant,  conditioned  that  his  co-obligor  should  replace  a  certain 
quantity  of  stock  which  the  testator  had  lent  him,  and  which  was  to 
be  replaced  on  the  1st  of  August,  1799,  At  the  trial  before  Le  Blanc, 
J,,  at  the  sittings  in  term  at  Westminster,  the  only  question  was. 
Whether  the  damages  should  be  calculated  at  ill33.  18s.  Gd.  the  price 
of  the  stock  on  the  1st  of  August  when  it  was  to  be  replaced;  or  at 
£1224:.  Is.  the  price  of  the  stock  on  the  day  of  the  trial;  the  value 
of  the  stock  having  risen  so  much  in  the  mean  time?  The  learned 
judge  being  of  opinion,  that  as  the  agreement  had  been  broken,  and 
the  stock  never  replaced,  the  plaintiff  was  entitled  to  recover  the  lar- 
ger sum,  being  that  which  could  alone  indemnify  him  at  the  present 
time.  And  the  verdict  was  taken  accordingly  for  il224.  Is.,  with  leave 
for  the  defendant  to  move  the  court  to  reduce  the  damages  to  ill33. 
18s.  6d.  if  they  were  of  opinion  that  the  plaintiff  was  not  entitled  to 
recover  more. 

Littledale  now  moved  for  a  rule  to  that  effect;  and  referred  to 
Dutch  V.  Warren,  2  Burr.  1010,  1  Stra.  40G,  and  Sanders  v.  Hawksley, 
8  Term  Rep.  102,  where  the  damages  had  been  estimated  by  the  price 
of  the  stock  at  the  time  when  it  ought  to  have  been  replaced;  though 
he  admitted,  that  in  the  latter  case  the  stock  had  fallen  in  value  before 
the  trial.  He  also  mentioned  a  case  of  Isherwood  v,  Seddon,  sittings 
after  Michaelmas  term,  1800,  before  Lord  Kenyon,  where  in  an  action 
on  a  bond  conditioned  to  replace  stock  on  a  certain  day,  the  price  of 
the  day  was  taken  as  the  criterion  of  the  damages,  because  it  was 
the  plaintiff's  own  fault  if  he  delayed  bringing  his  action  upon  the  de- 
fault of  the  defendant,  so  as  to  lose  the  benefit  of  the  subsequent  rise 
of  the  stock.  And  he  urged  the  last  mentioned  reason  as  an  argu- 
ment against  taking  the  price  of  the  stock  at  the  day  of  the  trial  in  case 

4  7  That  the  value  of  property  is  to  be  estimated  with  reference  to  its 
peculiar  availability  for  specific  purposes,  see,  also,  Horton  v.  Cooley,  135 
Mass.  5S9  (1883) ;  Reed  v.  O.  &  M.  R.  R.  Co.,  126  111.  48,  17  N.  E.  807  (1888) ; 
Moore  v.  Hall,  3  Q.  B.  Div.  178  (1878), 


Ch.  1)  FLUCTUATIONS    IN    VALUE.  357 

it  had  risen  in  the  mean  time;  for  then,  after  a  defauh  once  made,  it 
would  be  in  the  plaintiff's  power,  either  by  hastening  or  delaying  his 
suit,  to  take  advantage  of  the  rise  in  the  market,  without  any  risk  in 
case  the  market  fell. 

Grose,  J.  The  true  measure  of  damages  in  all  these  cases  is  that 
which  will  completely  indemnify  the  plaintiff  for  the  breach  of  the  en- 
gagement. If  the  defendant  neglect  to  replace  the  stock  at  the  day 
appointed,  and  the  stock  afterwards  rise  in  value,  the  plaintiff  can  only 
be  indemnified  by  giving  him  the  price  of  it  at  the  time  of  the  trial. 
And  it  is  no  answer  to  say,  that  the  defendant  may  be  prejudiced  by 
the  plaintiff's  delaying  to  bring  his  action ;  for  it  is  his  own  fault  that 
he  does  not  perform  his  engagement  at  the  time ;  or  he  may  replace  it 
at  any  time  afterwards  so  as  to  avail  himself  of  a  rising  market. 

Lawrence,  J.  Suppose  a  bill  were  filed  in  equity  for  a  specific  per- 
formance of  an  agreement  to  replace  stock  on  a  given  day,  which  had 
not  been  done  at  the  time ;  would  not  a  court  of  equity  compel  the 
party  or  replace  it  at  the  then  price  of  the  stock,  if  the  market  had 
risen  in  the  mean  time  ? 

Le  Blanc,  J.,  of  the  same  opinion. 

Rule  refused.^^ 


CLARK   V.    PINNEY. 

(Supreme  Court  of  New  York,  1827.     7  CJow.  681.) 

The  action  in  the  court  below  was  assumpsit,  brought  in  May,  1821, 
by  Pinney  against  Clark  and  Clark,  on  the  following  note :  "We  prom- 
ise, for  value  received,  to  pay  John  Pinney,  one  hundred  and  fifty 
dollars,  in  good  first  quality  common  salt,  at  one  dollar  and  fifty  cents 
per  barrel,  salt  to  be  subject  to  duties;  said  salt  to  be  delivered  at 
Salina,  in  good  boating  order,  on  the  fifteenth  of  April  next.  The 
9th  of  August,  1820.    James  Clark.    William  Clark."     *     *     * 

After  giving  the  note  in  evidence,  the  plaintiff  below  offered  to 
prove  the  value  of  salt  per  barrel  at  Salina  in  the  fall  of  1822,  claiming 
that  he  was  entitled  to  recover  the  highest  price  which  salt  bore  be- 
tween the  time  when  the  salt  became  due,  and  the  day  of  trial.  This 
was  objected  to  by  the  defendants  below;  but  the  evidence  was  re- 
ceived;  and  the  defendants  below  excepted.     *     *     *  49 

Sutherland,  J."*"  *  *  *  jj^  ^j^g  ordinary  case  of  a  contract  for 
the  sale  or  delivery  of  a  personal  chattel,  where  the  price  is  not  paid 
at  the  time  of  making  the  contract,  but  is  to  be  paid  upon  the  de- 
livery of  the  article,  the  criterion  by  which  to  measure  damages  for 
the  breach  of  the  contract,  is  unquestionably  the  price  of  the  article  at 

*8  But  see  Gordon  v.  Pym.  3  Hare,  223  (184.3). 

4  0  Part  of  the  oflicial  statement  of  the  case  is  omitted. 

60  Part  of  the  opinion  is  omitted. 


358  COMPENSATORY  DAMAGES.  (Part    5 

the  time  it  was  to  be  delivered.  Shepherd  v.  Hampton,  3  Wheat.  200, 
4  L.  Ed.  369;  Douglass  v.  McAlHster,  3  Cranch,  298,  2  L.  Ed.  445; 
Pitcher  v.  Livingston,  4  Johns.  15,  4  Am.  Dec.  229,  per  Spencer,  J.; 
Leigh  V.  Patterson,  8  Taunt.  540;  Gainsford  v.  Carroll,  2  B.  &  C. 
624.  We  are  not  aware  that  this  principle  has  ever  been  contested.  It 
certainly  was  not  our  intention  to  question  it,  in  the  judgment  pro- 
nounced in  West  v.  Wentworth  &  Beach,  3  Cow.  82. 
,.  But  we  hold  it  to  be  equally  clear,  that  if  the  price  be  paid  at  the 
time  of  making  the  contract,  or  at  any  time  anterior  to  that  fixed  for 
the  delivery,  and  the  vendor  fails  to  deliver,  the  vendee  is  not  con- 
fined in  measuring  his  damages,  to  the  value  of  the  article  on  the  day 
when  it  should  have  been  delivered^ 

Most  of  the  cases  in  which  this  principle  has  been  adopted,  have 
grown  out  of  contracts  for  the  delivery  and  replacing  of  stock;  and 
it  is  believed  there  is  no  case  to  be  found  in  England  in  which  the  dam- 
ages upon  such  a  contract,  have  been  confined  to  the  value  of  the  stock 
at  the  time  when  it  should  have  been  replaced,  where  the  action  was 
brought  upon  the  contract  itself,  and  the  question  was  distinctly  pre- 
sented and  passed  upon  by  the  court,  it  appearing  affirmatively  that 
the  stock  was  subsequently  of  greater  value.     *     *     * 

This  distinction  is  expressly  recognized  and  sanctioned  by  Chief 
Justice  Marshall,  in  Shepherd  v.  Hampton,  3  Wheat.  200,  4  L.  Ed.  369. 
That  was  an  action  brought  for  the  breach  of  a  contract  for  the  sale 
and  delivery  of  100,000  pounds  of  cotton,  to  be  delivered  on  or  be- 
fore the  15th  day  of  February,  1815,  for  which  the  plaintiff  was  to 
pay  at  the  rate  of  10  cents  per  pound.  The  defendant  delivered  about 
50,000  pounds  by  the  time  stipulated;  and  then  refused  to  fulfill  his 
contract,  or  deliver  any  more.  Cotton  rose  between  the  15th  of  Feb- 
ruary, 1815,  and  the  commencement  of  the  suit,  from  12  to  30  cents ; 
and  the  plaintifif  contended  that  he  was  entitled  by  way  of  damages 
to  the  difference  between  the  price  stipulated,  and  the  highest  market 
price  up  to  the  rendition  of  the,  judgment.  The  court,  however,  held 
the  rule  of  damages  to  be  the  market  price  of  cotton  on  the  day  the 
contract  ought  to  have  been  executed.  The  Chief  Justice  says:  "The 
unanimous  opinion  of  the  court  is,  that  the  price  of  the  article  at  the 
time  it  was  to  be  delivered,  is  the  measure  of  damages.  For  myself 
only,"  he  continues,  "I  can  say,  that  I  should  not  think  the  rule  would 
apply  to  a  case  where  advances  of  money  had  been  made  by  the  pur- 
chaser under  the  contract.  But  I  am  not  aware  what  would  be  the 
opinion  of  the  court  in  such  a  case."     *     *     * 

Kent,  J.,  in  delivering  the  opinion  of  the  court  in  Cortelyou  v. 
Lansing,  2  Caines'  Cas.  216,  cites,  apparently  with  approbation,  the 
case  of  Shepherd  v.  Hampton ;  and  he  cites  it  in  confirmation  or  il- 
lustration of  the  principle  which  he  was  then  maintaining,  that  in 
many  cases,  the  measure  of  damages  is  not  the  value  of  the  chattel 
or  article,  at  the  time  when  the  cause  of  action  accrued.    In  that  case, 


Ch.  1)  '  FLUCTUATIONS    IX    VALUE.  359 

the  depreciation  note  which  had  been  pawned  to  Cortelyou,  was  sold 
by  him  in  1788.  It  was  not  demanded  by  the  representatives  of  the 
pawnor  until  1799,  eleven  years  afterwards ;  and  there  was  no  evi- 
dence of  a  readiness  or  capacity  on  the  part  of  the  plaintiff,  when  he 
made  the  demand,  to  redeem  the  pledge.  The  cause  of  action,  tliere- 
fore,  did  not  arise  from  the  demand ;  but  accrued  substantially  at  the 
time  of  the  sale;  by  which  act  the  defendant  incapacitated  himself  to 
restore  the  pledge.  But  the  plaintiff  in  that  case,  recovered  according 
to  the  value  of  the  note  in  1799,  when  it  was  demanded ;  because,  as 
tjie  court  express  it,  he  manifested  his  will  to  have  it  then  restored. 
(The  rule  in  trover,  that,  where  the  chattel  is  not  of  a  fixed  and  deter- 
minate value,  the  damages  are  not  in  all  cases  confined  to  its  worth  at 
the  time  of  conversion,  but  may  be  enhanced  according  to  its  increased 
value  subsequent  to  that  time,  as  established  in  Fisher  v.  Prince,  3 
Burr.  1363,  and  Whitten  v.  Fuller,  2  Bl.  Rep.  902,  was  also  adverted 
to  for  the  same  purpose. 

The  adopting  of  a  period,  then,  subsequent  to  that  when  the  cause 
of  action  accrued,  as  the  time  when  damages  are  to  be  measured,  where 
the  circumstances  of  the  case  show  that  the  substantial  purposes  of 
justice  will  be  best  promoted  by  it,  is  not  an  anomaly  in  the  law;  nor 
is  it  peculiar  to  contracts  for  the  sale  or  delivery  of  stock.     *     *     * 

We  hold  it,  therefore,  to  be  settled  by  authority,  and  rightly  settled 
upon  principle,  that  where  a  contract  is  made  for  the  sale  and  deliv- 
ery of  goods  or  chattels,  and  the  price  or  consideration  is  paid  in  ad- 
vance, and  an  action  is  brought  upon  the  contract,  for  the  nondelivery, 
the  plaintiff  is  not  confined,  in  measuring  his  damages,  to  the^  value 
of  the  articles  on  the  day  when  they  should  have  been  delivered,"*.  But 
we  doubt  the  propriety  of  giving  the  vendee  in  all  cases,  as  a  measure 
of  damages,  the  highest  price  of  the  article,  between  the  day  when  it 
should  have  been  delivered  and  the  day  of  trial.  If  he  immediately, 
or  without  any  unreasonable  delay,  commences  and  prosecutes  his 
action,  we  think  it  just  and  proper  that  the  fluctuation  in  price  should 
be  exclusively  at  the  hazard  of  the  defendant;  the  plaintiff  having 
done  everything  in  his  power  to  have  the  contract  settled  and  adjusted, 
and  which  is  prevented  solely  by  the  laches  or  default  of  the  defendant. 
^n  such  a  case,  therefore,  the  plaintiff  is  entitled  to  the  highest  price 
between  the  day  when  the  delivery  should  have  been  made,  and  the 
day  of  trial.  But  where  he  delays  the  prosecution  of  his  claim,  beyond 
the  period  which  may  be  considered  reasonable,  for  the  purpose  of 
endeavoring  to  make  an  amicable  arrangement,  he  must  be  considered 
as  assenting  to  the  delay,  and  ought  to  participate  in  the  hazard  of  it. 
In  such  a  case,  we  are  inclined  to  think  the  rule  of  dama§^es  should 
be  the  value  of  the  article  at  the  commencement  of  the  suit.^ 

Whether  this  rule  of  damages  would  be  applicable  to  contracts  for 
the  sale  and  delivery  of  individual  articles,  purchased  for  the  use  and 
accommodation  of  the  vendee,  and  not  for  the  purpose  of  sale,  we  ex- 


360  COMPENSATORY   DAMAGES.  (Part    5 

press  no  opinion.  The  case  at  bar  is  evidently  a  contract  for  the  pur- 
pose of  trade  and  commerce;  and  to  that  class  of  cases,  we  wish  to 
be  understood,  as  at  present  confining  our  opinion.     *     *     *  ^^ 


SCOTT   V.   ROGERS. 

(Court  of  Appeals  of  New  York,  18G4.     31  N.  Y.  676.) 

On  July  12,  1853,  the  defendants,  having  in  store  5,558  bushels  of 
plaintiff's  wheat  at  Buffalo,  were  directed  by  telegraph  to  sell  the  same 
on  that  day  for  $1,08  per  bushel,  or,  if  they  did  not  sell  it  on  that  day, 
to  ship  it  to  New  York.  The  defendants  sold  the  wheat  on  the  day 
following  at  8:00  a.  m.  for  $1.08.  Had  the  wheat  been  shipped  as 
directed  it  would  have  reached  New  York  between  July  27th  and  31st. 
The  highest  price  to  August  4th  was  $1.31.  The  price  flucuated  in 
the  New  York  market  between  July  25th  and  November  29th  between 
$1.25  and  $1.65.  The  court  decided  that  the  sale  on  the  13th  was  a 
conversion,  and  that  the  measure  of  damages  was  the  difference  be- 
tween the  price  the  wheat  was  sold  for  and  what  it  was  worth  in  a 
reasonable  time  after  the  sale  within  which  the  action  might  be  begun 
(which  was  fixed  at  November  29th),  after  deducting  the  cost  of  trans- 
portation and  storage,  or  201/4  cents  per  bushel.  Judgment  for  plain- 
tiff for  $2,764.44,  from  which  defendant  appeals.    Affirmed. 

HoGEBOOM,  J.^2  *  *  *  J  think  the  rule  of  damages  applicable 
to  cases  of  this  description  is  reasonably  well  settled  to  be  as  liberal 
as  this  in  favor  of  the  plaintiff,  to  wit:  To  allow  to  the  plaintiff  the 
highest  price  for  the  property  prevailing  between  the  time  of  con- 
version and  a  reasonable  time  afterwards  for  the  commencement  of  the 
action.  Some  of  the  cases  carry  the  period  up  to  the  time  of  trial  of 
a  suit  commenced  within  a  reasonable  time;  and  as  between  these 
two  periods — the  time  of  commencing  the  suit  and  the  time  of  trial — 
the  rule  is  somewhat  fluctuating.  What  this  reasonable  time  shall  be, 
has  never  been  definitely  settled,  and  may,  perhaps,  fluctuate  to  some 
extent  according  to  the  circumstances  of  the  particular  case.  In  the 
case  at  bar,  it  was  held  to  be  four  months  after  the  conversion,  which 
terminated  before  the  close  of  navigation  in  that  year;  which  latter 
circumstance  might  perhaps  be  supposed  to  have  some  probable  in- 
fluence in  raising  the  market  price  of  the  property  in  New  York,  and 

61  See,  also,  for  allowang  the  highest  value  up  to  the  time  of  the  trial,  when 
the  goods  were  paid  for  in  advance  and  not  delivered,  Elliot  v.  Hughes,  3 
Fost.  &  F.  387  (1863).  And  cf.  Startup  v.  Cortazzi,  2  Cromp.,  M.  &  R.  165 
(1835),  and  Valpy  v.  Oakeley,  16  Q.  B.  941  (1851). 

So,  in  an  action  for  not  redelivering  on  the  appointed  day  shares  of  stock 
loaned  to  defendant.  McArthur  v.  Lord  Seaforth,  2  Taunt.  257  (1810) ;  Downes 
V.  Back,  1  Starkie,  318  (1816) ;  Harrison  v.  Harrison,  1  Car.  &  P.  412  (1824) ; 
Owen  v.  Routh,  14  C.  B.  327  (1854). 

62  Part  of  the  opinion  is  omitted. 


Ch.  1)  FLUCTUATIONS    IN    VALUE.  361 

therefore  as  not  unlikely  to  induce  the  plaintiff  to  retain  the  property 
until  that  time.     *     *     * 

It  has  been  held  in  cases  where  damages  are  sought  for  the  breach  of 
a  contract  for  the  sale  of  personal  property,  wholly  executory  on  both 
sides,  that  the  true  rule  of  damages  is  the  difference  between  the  pur- 
chase price  named  in  the  contract  and  the  price  of  the  property  at  the 
time  fixed  for  performance ;  that,  as  nothing  had  been  paid  upon  the 
property,  if  the  plaintiff  still  wished  to  obtain  the  property,  he  could 
go  into  the  market  and  procure  it  with  the  sum  named  in  the  contract, 
with  the  addition  of  its  rise  in  value,  or,  if  he  chose  simply  to  pocket 
the  damages,  he  could  do  so  by  receiving  a  sum  equal  to  the  difference 
in  value  between  the  two  periods,  and  thus  obtain  complete  indemnity. 
I  But,  that  where  the  executory  contract  had  been  performed  on  the 
part  of  the  plaintiff  by  the  payment  of  the  price,  and  was  broken  by  the 
defendant  by  the  nondelivery  of  the  property,  the  true  rule  of  damages 
was  to  allow  to  the  plaintiff  the  highest  market  price  intervening  be- 
tween the  time  of  conversion  and  the  time  of  the  commencement  of 
the  action  or  of  the  trial  when  the  action  was  commenced  within  a 
reasonable  time  after  the  conversion,  upon  the  principle  that  it  might 
be  inconvenient  or  impossible  and  was  unjust  to  require  the  plaintiff, 
in  order  to  procure  a  similar  article  to  that  illegally  converted,  to  pay 
the  contract  price  a  second  time,  with  the  added  value  prevailing  at 
the  period  of  performance ;  and  that  it  was  more  equitable  to  hold  the 
defendant  responsible  for  the  fluctuations  of  the  market,  so  long  as  he 
continued  to  deprive  the  plaintiff  of  the  article  purchased,  up  to  the 
period  when,  by  operation  of  law  and  the  effect  of  a  verdict,  the  title 
was  transferred  from  the  plaintiff  to  the  defendant.     *     *     * 


BAKER   V.   DRAKE   et   al. 
(Court  of  Appeals  of  New  York,  1S73.     53  N.  Y.  211,  13  Am.  Rep.  507.) 

The  plaintiff  deposited  from  time  to  time  with  the  defendant  sums 
aggregating  $-1,240  for  the  purchase  of  shares  of  stock  of  the  Chicago 
&  Alton  Railroad,  which  defendant  as  broker  purchased  on  account 
for  the  plaintiff  at  the  total  cost  of  $G6,300  above  all  sums  advanced  by 
the  plaintiff.  On  November  14,  18G8,  the  defendant  wrongfully  sold 
the  stock,  which  was  then  of  the  market  price  of  less  than  $67,000, 
the  surplus  belonging  to  plaintiff  being  thus  but  $558.  The  stock  sub- 
sequently rose  rapidly  in  value,  on  November  2-ith,  the  date  of  the  be- 
ginning of  this  action,  being  worth  $5,500  more;  i.  e.  selling  at  145. 
The  maxium  point  was  reached  in  August,  18G9,  when  30  shares  sold 
for  170.  On  the  day  preceding  the  trial,  October  20,  18G9,  the  price 
was  143,  and  during  the  month  preceding  it  ranged  between  137  and 
145.  The  jury,  under  the  rule  announced  by  the  court,  allowed  a  re- 
covery for  $18,000,  which  was  the  difference  between  170  and  134; 
the  latter  being  the  average  price  at  which  the  defendant  sold. 


362  COMPENSATORY  DAMAGES.  (Part    5 

Rapallo,  J/^  *  *  *  The  judge  at  the  trial,  following  the  case 
of  Markham  v.  Jaudon,  41  N.  Y.  235,  instructed  the  jury  that  the 
plaintiff,  if  entitled  to  recover,  was  entitled  to  the  difference  between 
the  amount  for  which  the  stock  was  sold  by  the  defendants  and  the 
highest  market  value  which  it  reached  at  any  time  after  such  sale 
down  to  the  day  of  trial. 

This  rule  of  damages  has  been  recognized  and  adopted  in  several 
late  adjudications  in  this  state  in  actions  for  the  conversion  of  prop- 
erty of  fluctuating  value;  but  its  soundness,  as  a  general  rule,  applica- 
ble to  all  cases  of  conversion  of  such  property,  has  been  seriously 
questioned,  and  is  denied  in  various  adjudications  in  this  and  other 
states. 

This  court  has,  in  several  instances,  intimated  a  willingness  to  re- 
examine the  subject,  and  in  Matthews  v.  Coe,  49  N.  Y.  57,  per  Church, 
C.  J.,  stated  very  distinctly  that  an  unqualified  rule,  giving  a  plaintiff 
in  all  cases  of  conversion  the  benefit  of  the  highest  price  to  the  time 
of  trial,  could  not  be  upheld  upon  any  sound  principle  of  reason  or 
justice,  and  that  we  did  not  regard  the  rule  referred  to  so  firmly  set- 
tled by  authority  as  to  be  beyond  the  reach  of  review,  whenever  an 
occasion  should  render  it  necessary. 

Whether  the  present  action  is  one  for  the  conversion  of  property  of 
the  plaintiff,  or  for  the  breach  of  a  special  contract,  presents  a  serious 
question,  but  that  inquiry  is  perhaps  unimportant  on  the  question  of 
damages  and  will  be  deferred  for  the  present,  and  the  case  treated  as 
if  it  were  one  of  conversion.     *     *     * 

This  enormous  amount  of  profit,  given  under  the  name  of  damages, 
could  not  have  been  arrived  at  except  upon  the  unreasonable  supposi- 
tion, unsupported  by  any  evidence,  that  the  plaintiff  would  not  only 
have  supplied  the  necessary  margin  and  caused  the  stock  to  be  carried 
through  all  its  fluctuations  until  it  reached  its  highest  point,  but  that 
he  would  have  been  so  fortunate  as  to  seize  upon  that  precise  moment 
to  sell,  thus  avoiding  the  subsequent  decline,  and  realizing  the  highest 
profit  which  could  have  possibly  been  derived  from  the  transaction  by 
one  endowed  with  the  supernatural  power  of  prescience. 

In  a  case  where  the  loss  of  probable  profits  is  claimed  as  an  element 
of  damage,  if  it  be  ever  allowable  to  mulct  a  defendant  for  such  a  con- 
jectural loss,  its  amount  is  a  question  of  fact,  and  a  finding  in  respect 
to  it  should  be  based  upon  some  evidence.  In  respect  to  a  dealing 
which,  at  the  time  of  its  termination,  was  as  likely  to  result  in  further 
loss  as  in  profit,  to  lay  down  as  an  inflexible  rule  of  law  that  as  dam- 
ages for  its  wrongful  interruption  the  largest  amount  of  profit  which 
subsequent  developments  disclose  might,  under  the  most  favorable 
circumstances,  have  been  possibly  obtained  from  it,  must  be  awarded 
to  the  fortunate  individual  who  occupies  the  position  of  plaintiff,  with- 
out regard  to  the  probabilities  of  his  realizing  such  profits,  seems  to 

5  3  Part  of  the  opiuion  is  omitted,  and  the  statement  of  facts  is  rewritten. 


Ch.  1)  FLUCTUATIONS    IN    VALUE.  363 

me  a  wide  departure  from  the  elementary  principles  upon  which  dam- 
ages have  hitherto  been  awarded. 

An  amount  sufficient  to  indemnify  the  party  injured  for  the  loss, 
which  is  the  natural,  reasonable  and  proximate  result  of  the  wrongful 
act  complained  of,  and  which  a  proper  degree  of  prudence  on  the  part 
of  the  complainant  would  not  have  averted,  is  the  measure  of  damages 
which  juries  are  usually  instructed  to  award,  except  in  cases  where 
punitive  damages  are  allowable.     *     *     * 

The  plaintiff  did  not  hold  the  stocks  as  an  investment,  but  the  ob- 
ject of  the  transaction  was  to  have  the  chance  of  realizing  a  profit  by 
their  sale.  He  had  not  paid  for  them.  The  defendants  had  supplied 
all  the  capital  embarked  in  the  speculation,  except  the  comparatively 
trifling  sum  which  remained  in  their  hands  as  margin.  Assuming  that 
the  sale  was  in  violation  of  the  rights  of  the  plaintiff,  what  was  the  ex- 
tent of  the  injury  inflicted  upon  him?  He  was  deprived  of  the  chance 
of  a  subsequent  rise  in  price.  But  this  was  accompanied  with  the  cor- 
responding chance  of  a  decline,  or,  in  case  of  a  rise,  of  his  not  avail- 
ing himself  of  it  at  the  proper  moment;  a  continuance  of  the  specu- 
lation also  required  him  to  supply  further  margin,  and  involved  a  risk 
of  ultimate  loss. 

If  upon  becoming  informed  of  the  sale,  he  desired  further  to  pros- 
ecute the  adventure  and  take  the  chances  of  a  future  market,  he  had  the 
right  to  disaffirm  the  sale  and  require  the  defendants  to  replace  the 
stock.  If  they  failed  or  refused  to  do  this,  his  remedy  was  to  do  it 
himself  and  charge  them  with  the  loss  reasonably  sustained  in  doing  so. 
The  advance  in  the  market  price  of  the  stock  from  the  time  of  the  sale 
up  to  a  reasonable  time  to  replace  it,  after  the  plaintiff  received  notice 
of  the  sale,  would  afford  a  complete  indemnity.  Suppose  the  stock, 
instead  of  advancing,  had  declined  after  the  sale,  and  the  plaintiff  had 
replaced  it,  or  had  full  opportunity  to  replace  it,  at  a  lower  price,  could 
it  be  said  that  he  sustained  any  damage  by  the  sale ;  would  there  be 
any  justice  or  reason  in  permitting  him  to  lie  by  and  charge  his  broker 
wiih  the  result  of  a  rise  at  some  remote  subsequent  period?  If  the 
stocks  had  been  paid  for  and  owned  by  the  plaintiff,  different  considera- 
tions would  arise,  but  it  must  be  borne  in  mind  that  we  are  treating 
of  a  speculation  carried  on  with  the  capital  of  the  broker,  and  not  of 
the  customer.  If  the  broker  has  violated  his  contract,  or  disposed  of 
the  stock  without  authority,  the  customer  is  entitled  to  recover  such 
damages  as  would  naturally  be  sustained  in  restoring  himself  to  the 
position  of  which  he  has  been  deprived.  He  certainly  has  no  right  to 
be  placed  in  a  better  position  than  he  would  be  in  if  the  wrong  had  not 

been  done.  >  r      u         ^    i 

But  the  rule  adopted  in  Markham  v.  Jaudon,  passing  far  beyond  the 
'■,cope  of  a  reasonable  indemnity  to  the  customer  whose  stocks  have 
been  improperly  sold,  places  him  in  a  position  incomparably  superior 
to  that  of  which  he  was  deprived.  It  leaves  him,  with  his  venture 
out    for  an  indefinite  period,  limited  only  by  what  may  be  deemed  a 


364  COMPENSATORY  DAMAGES.  (Part   5 

reasonable  time  to  bring  a  suit  and  conduct  it  to  its  end.  The  more 
crowded  the  calendar  and  the  more  new  trials  granted  in  the  action, 
the  better  for  him.  He  is  free  from  the  trouble  of  keeping  his  mar- 
gins good  and  relieved  of  all  apprehensions  of  being  sold  out  for  want 
of  margin.  If  the  stock  should  fall  or  become  worthless  he  can  in- 
cur no  loss,  but,  if  at  any  period  during  the  months  or  years  occupied 
in  the  litigation,  the  market  price  of  the  stock  happens  to  shoot  up, 
though  it  be  but  for  a  moment,  he  can,  at  the  trial,  take  a  retrospect 
and  seize  upon  that  happy  instant  as  the  opportunity  for  profit  of 
which  he  was  deprived  by  his  transgressing  broker,  and  compel  him  to 
replace  with  solid  funds  this  imaginary  loss.     *     *     * 

The  most  thorough  consideration  of  the  subject  to  be  found  in  any 
reported  case  is  contained  in  the  extremely  able  opinion  of  Duer,  J., 
in  Suydam  v.  Jenkins,-  3  Sandf.  619  to  647,  where  that  accomplished 
jurist  reviews,  with  great  discrimination,  many  of  the  cases  here  re- 
ferred to,  and  others  which  have  not  been  cited,  and  arrives  substan- 
tially at  the  same  conclusion  as  that  reached  by  Church,  C.  J.,  in 
Matthews  v.  Coe,  49  N.  Y.  57,  that  the  highest  price  which  the  prop- 
erty has  borne  at  any  time  between  its  conversion  and  the  trial  can- 
not in  all  cases  be  the  just  measure  of  damages.  The  reasoning  con- 
tained in  that  opinion  is  of  such  force  as  to  outweigh  the  apparent  pre- 
ponderance of  authority  in  favor  of  the  rule  claimed,  and  demonstrates 
its  fallacy  when  applied  to  the  facts  of  the  present  case,  whether  the 
cause  of  action  be  deemed  for  conversion  of  property  or  the  breach 
of  a  contract.    *     *     *    Reversed. 


WRIGHT  V.  BANK  OF  THE  METROPOLIS. 

(Court  of  Appeals  of  New  York,  1SS8.     110  N.  Y.  237,  18  N.  E.  79,  1  L.  R.  A. 
289,  6  Am.  St.  Rep.  356.) 

Stock  had  been  deposited  with  the  defendant  as  collateral,  and  had 
been  wrongfully  sold  by  it  on  January  29,  1878,  for  $2,261.50.  This 
sale  was  not  known  to  the  owner  until  May  9th.  The  action  was  com- 
menced October  7,  1879.  On  February  14,  1881,  the  stock  reached 
the  highest  price  down  to  the  date  of  the  trial,  selling  on  the  market 
that  day  for  $18,003.  The  jury  found  a  verdict  for  $3,391.25.  There 
was  no  evidence  showing  when  the  stock  reached  that  value.  Both 
parties  appealed. 

Peckham,  J.^*  *  *  *  By  the  charge  the  case  was  left  to  the 
jury  to  give  the  highest  price  the  stock  could  have  been  sold  for,  in- 
termediate its  conversion  and  the  day  of  trial,  provided  the  jury 
thought,  under  all  the  circumstances,  that  the  action  had  been  com- 
menced within  a  reasonable  time  after  the  conversion,  and  had  been 
prosecuted  with  reasonable  diligence  since.     Authority  for  this-  rule 

6  4  Part  of  the  opinion  is  omitted,  and  tlie  statement  of  facts  is  rewritten. 


Ch.  1)  FLUCTUATIONS    IN    VALUE.  3G5 

is  claimed  under  Romaine  v.  Van  Allen,  2G  N.  Y.  309,  and  several 
other  cases  of  a  somewhat  similar  nature,  referred  to  therein.  Mark- 
ham  V.  Jaudon,  41  N.  Y.  235,  followed  the  rule  laid  down  in  Romaine 
V.  Van  Allen.  In  these  two  cases  a  recovery  was  permitted  which 
gave  the  plaintiff  the  hi.c^hest  price  of  the  stock  between  the  conversion 
and  the  trial.  In  the  jNIarkham  Case  the  plaintiff  had  not  paid  for  the 
stocks,  but  was  having  them  carried  for  him  by  his  broker  (the  de- 
fendant) on  a  margin.  Yet  this  fact  was  not  regarded  as  making  an_v 
difference  in  the  rule  of  damages,  and  the  case  was  thought  to  be  con- 
trolled by  that  of  Romaine.  In  this  state  of  the  rule  the  case  of  Mat- 
thews v.  Coe,  49  N.  Y.  57-63,  came  before  the  court.  The  precise 
question  was  not  therein  involved;  but  the  court,  per  Church,  C.  J., 
took  occasion  to  intimate  that  it  was  not  entirely  satisfied  with  the  cor- 
rectness of  the  rule  in  any  case  not  special  and  exceptional  in  its  cir- 
cumstances ;  and  the  learned  judge  added  that  they  did  not  regard  the 
rule  as  so  firmly  settled  by  authority  as  to  be  beyond  the  reach  of  re- 
view whenever  an  occasion  should  render  it  necessary.  One  phase  of 
the  question  again  came  before  this  court,  and  in  proper  form,  in  Bak- 
er v.  Drake,  53  N.  Y.  211,  13  Am.  Rep.  507,  where  the  plaintiff  had 
paid  but  a  small  percentage  on  the  value  of  the  stock,  and  his  broker, 
the  defendant,  was  carrying  the  same  on  a  margin,  and  the  plaintiff 
had  recovered  in  the  court  below,  as  damages  for  the  unauthorized 
sale  of  the  stock,  the  highest  price  between  the  time  of  conversion  and 
the  time  of  trial.  The  rule  was  applied  to  substantially  the  same  facts 
as  in  Markham  v.  Jaudon,  supra,  and  that  case  was  cited  as  authority 
for  the  decision  of  the  court  below.  This  court,  however,  reversed  the 
judgment  and  disapproved  the  rule  of  damages  which  had  been  ap- 
plied. The  opinion  was  written  by  that  very  able  and  learned  judge. 
Rapallo,  and  all  the  cases  pertaining  to  the  subject  were  reviewed  by 
him,  and  in  such  a  masterly  manner  as  to  leave  nothing  further  for  us 
to  do  in  that  direction.  We  think  the  reasoning  of  the  opinion  calls 
for  a  reversal  of  this  judgment.     *     *     * 

In  stating  what  in  his  view  would  be  a  proper  indemnity  to  the  in- 
jured party  in  such  a  case,  the  learned  judge  commenced  his  statement 
with  the  fact  that  the  plaintiff  did  not  hold  the  stocks  for  investment ; 
and  he  added  that,  if  they  had  been  paid  for  and  owned  by  the  plain- 
tiff, different  considerations  would  arise,  but  it  must  be  borne  in  mind 
that  we  are  treating  of  a  speculation  carried  on  with  the  capital  of  the 
broker,  and  not  of  the  customer.  If  the  broker  has  violated  his  con- 
tract or  disposed  of  the  stock  without  authority,  the  customer  is  en- 
titled to  recover  such  damages  as  would  naturally  be  sustained  in  re- 
storing himself  to  the  position  of  which  he  has  been  deprived.  He  cer- 
tainly has  no  right  to  be  placed  in  a  better  position  than  he  would  be 
in  if  the  wrong  had  not  been  done.  The  whole  reasoning  of  the 
opinion  is  still  based  upon  the  question  as  to  what  damages  would 
naturally  be  sustained  by  the  plaintiff  in  restoring  himself  to  the  posi- 
tion he  had  been  in;    or  in  other  words,  in  repurchasing  the  stock. 


366  COMPENSATORY   DAMAGES,  (Part    5 

It  is  assumed  in  the  opinion  that  the  sale  by  the  defendant  was  illegal 
and  a  conversion,  and  that  plaintiff  had  a  right  to  disaffirm  the  sale, 
and  to  require  defendants  to  replace  the  stock.  If  they  failed,  then 
the  learned  judge  says  the  plaintiff's  remedy  was  to  do  it  himself,  and 
to  charge  the  defendants  with  the  loss  necessarily  sustained  by  him 
in  doing  so. 

Is  not  this  equally  the  duty  of  a  plaintiff  who  owns  the  whole  of  the 
stock  that  has  been  wrongfully  sold?  I  mean,  of  course,  to  exclude 
all  question  of  punitive  damages  resting  on  bad  faith.  In  the  one  case 
the  plaintiff  has  a  valid  contract  with  the  broker  to  hold  the  stock,  and 
the  broker  violates  it  and  sells  the  stock.  The  duty  of  the  broker 
is  to  replace  it  at  once,  upon  the  demand  of  the  plaintiff.  In  case  he 
does  not,  it  is  the  duty  of  the  plaintiff  to  repurchase  it.  Why  should 
not  the  same  duty  rest  upon  a  plaintiff  who  has  paid  in  full  for  his 
stock,  and  has  deposited  it  with  another  conditionally?  The  broker 
who  purchased  it  on  a  margin  for  the  plaintiff  violates  his  contract 
and  his  duty  when  he  wrongfully  sells  the  stock,  just  as  much  as  if 
the  whole  purchase  price  had  been  paid  by  the  plaintiff.  His  duty  is 
in  each  case  to  replace  the  stock  upon  demand,  and,  in  case  he  fail  so 
to  do,  then  the  duty  of  the  plaintiff  springs  up,  and  he  should  repur- 
chase the  stock  himself.  This  duty  it  seems  to  me  is  founded  upon  the 
general  duty  which  one  owes  to  another  who  converts  his  property 
under  an  honest  mistake,  to  render  the  resulting  damage  as  light  as  it 
may  be  reasonably  within  his  power  to  do.  *  *  *  j  think  the  duty 
exists  in  the  same  degree  where  the  plaintiff  had  paid  in  full  for  the 
stock,  and  was  the  absolute  owner  thereof.     *     *     * 

The  loss  of  a  sale  of  the  stock  at  the  highest  price  down  to  trial 
would  seem  to  be  a  less  natural  and  proximate  result  of  the  wrong- 
ful act  of  the  defendant  in  selling  it  when  plaintiff  had  the  stock  for 
an  investment,  than  when  he  had  it  for  a  speculation ;  for  the  intent 
to  keep  it  as  an  investment  is  at  war  with  any  intent  to  sell  it  at  any 
price,  even  the  highest.  But  in  both  cases  the  qualification  attaches 
that  the  loss  shall  only  be  such  as  a  proper  degree  of  prudence  on 
the  part  of  the  complainant  would  not  have  averted,  and  a  proper  de- 
gree of  prudence  on  the  part  of  the  complainant  consists  in  repurchas- 
ing the  stock  after  notice  of  its  sale,  and  within  a  reasonable  time.  If 
the  stock  then  sells  for  less  than  the  defendant  sold  it  for,  of  course 
the  complainant  has  not  been  injured,  for  the  difference  in  the  two 
prices  inures  to  his  benefit.  If  it  sells  for  more,  that  difference  the 
defendant  should  pay. 

It  is  said  that  as  he  had  already  paid  for  the  stock  once,  it  is  unrea- 
sonable to  ask  the  owner  to  go  in  the  market  and  repurchase  it.  I  do 
not  see  the  force  of  this  distinction.  In  the  case  of  the  stock  held  on 
margin,  the  plaintiff  has  paid  his  margin  once  to  the  broker,  and  so  it 
may  be  said  that  it  is  unreasonable  to  ask  him  to  pay  it  over  again  in 
the  purchase  of  the  stock.  Neither  statement,  it  seems  to  me,  fur- 
nishes any  reason  for  holding  a  defendant  liable  to  the  rule  of  damages 


Ch.  1)  FLUCTUATIONS    IN    VALUE.  367 

Stated  in  this  record.  The  defendant's  liability  rests  upon  the  ground 
that  he  has  converted,  though  in  good  faith,  and  under  a  mistake  as  to 
his  rights,  the  property  of  the  plaintiff.  The  defendant  is,  therefore, 
liable  to  respond  in  damages  for  the  value.  But  the  duty  of  the  plain- 
tiff to  make  the  damage  as  light  as  he  reasonably  may  rests  upon  him 
m  both  cases;  for  there  is  no  more  legal  wrong  done  by  the  defend- 
ant in  selling  the  stock  which  the  plaintiff  has  fully  paid  for  than  there 
is  in  selling  the  stock  which  he  has  agreed  to  hold  on  a  margin,  and 
which  agreement  he  violates  by  selling  it.  All  that  can  be  said  is  that 
there  is  a  difference  in  amount,  as  in  one  case  the  plaintiff's  margin 
has  gone,  while  in  the  other  the  whole  price  of  the  stock  has  been 
sacrificed.  But  there  is  no  such  difference  in  the  legal  nature  of  the 
two  transactions  as  should  leave  the  duty  resting  upon  the  plaintiff  in 
the  one  case  to  repurchase  the  stock,  and  in  the  other  case  should  whol- 
ly absolve  him  therefrom. 

(A  rule  which  requires  a  repurchase  of  the  stock  in  a  reasonable  time 
does  away  with  all  questions  as  to  the  highest  price  before  the  com- 
mencement of  the  suit,  or  whether  it  was  commenced  in  a  reasonable 
time,  or  prosecuted  with  reasonable  diligence;  and  leaves  out  of  view- 
any  question  as  to  the  presumption  that  plaintiff  would  have  kept  his 
stock  down  to  the  time  when  it  sold  at  the  highest  mark  before  the  day 
of  trial  and  would  then  have  sold  it,  even  though  he  had  owned  it  for 
an  investment.  Such  a  presumption  is  not  only  of  quite  a  shadowy 
and  vague  nature,  but  is  also,  as  it  would  seem,  entirely  inconsistent 
with  the  fact  that  he  was  holding  the  stock  as  an  investment.  If  kept 
for  an  investment,  it  would  have  been  kept  down  to  the  day  of  trial ; 
and  the  price  at  that  time  there  might  be  some  degree  of  propriety  in 
awarding,  under  certain  circumstances,  if  it  were  higher  than  when  it 
was  converted.  But  to  presume  in  favor  of  an  investor  that  he  would 
have  held  his  stock  during  all  of  a  period  of  possible  depression,  and 
would  have  realized  upon  it  when  it  reached  the  highest  figure, 
is  to  indulge  in  a  presumption  which,  it  is  safe  to  say,  would  not  be 
based  on  fact  once  in  a  hundred  times.  To  formulate  a  legal  liability 
based  upon  such  presumption  I  think  is  wholly  unjust  in  such  a  case 
as  the  present.  Justice  and  fair  dealing  are  both  more  apt  to  be  pro- 
moted by  adhering  to  the  rule  which  imposes  the  duty  upon  the  plain- 
tiff to  make  his  loss  as  light  as  possible,  notwithstanding  the  unauthor- 
ized act  of  the  defendant,  assuming,  of  course,  in  all  cases,  that  there 
was  good  faith  on  the  part  of  the  appellant.  It  is  the  natural  and 
proximate  loss  which  the  plaintiff  is  to  be  indemnified  for,  and  that 
cannot  be  said  to  extend  to  the  highest  price  before  trial,  but  only  to 
the  highest  price  reached  within  a  reasonable  time  after  the  plaintiff 
has  learned  of  the  conversion  of  his  stock  within  which  he  could  go  in 
the  market  and  repurchase  it.  What  is  a  reasonable  time  when  the 
facts  are  undisputed,  and  different  inferences  cannot  reasonably  be 
drawn  from  the  same  facts,  is  a  question  of  law.  See  Colt  v.  Owens, 
90  N.  Y.  3G8;  Hedges  v.  Railroad  Co..  49  N.  Y.  223. 


,v^5t\,  flti>^H<;t^i'Vt^>• 


368  COMPENSATORY  DAMAGES,  (Part    5 

We  think  that  beyond  all  controversy  in  this  case,  and  taking  all  the 
facts  into  consideration,  this  reasonable  time  had  expired  by  July  1, 
1878,  following  the  9th  of  May  of  the  same  year.  The  highest  price 
which,  the  stock  reached  during  that  period  was  $2,795,  and,  as  it  is 
not  certain  on  what  day  the  plaintiff  might  have  purchased,  we  think 
it  fair  to  give  him  the  highest  price  it  reached  in  that  time.     *     *     *  °° 


DIMOCK  et  al.  v.  UNITED  STATES  BANK. 

(Court  of  Errors  and  Appeals  of  New  Jersey,  1893.     55  N.  J.  Law,  296,  25 
Atl.  926,  39  Am.  St.  Rep.  643.) 

The  plaintiff  bank  sued,'  May  21,  1891,  to  recover  a  balance  claimed 
of  $4,456.25  upon  a  loan  to  defendant  of  $50,000  on  a  note  maturing 
in  August,  1884.  The  defendant  set  up  a  wrongful  conversion  of  cer- 
tain stock  deposited  as  collateral  to  the  loan,  in  that  the  plaintiff  sold 
the  same  May  15,  1884,  prior  to  the  maturity  of  the  note.  The  sale 
netted  $45,456.26.  In  December,  1886,  and  in  April  and  May,  1887, 
the  securities  were  worth  in  the  market  $56,860.  The  court  below  re- 
fused to  allow  defendant's  claim  and  rendered  judgment  for  the  bal- 
ance due. 

Depue,  J.°"  *  *  *  Assuming  that  the  sale  of  the  securities  in 
May  was  unauthorized,  it  was  a  conversion  of  the  property,  though 
the  sale  was  made  in  good  faith.  Nevertheless,  the  judge's  finding,  and 
the  rule  of  damages  applied,  were  correct.!  The  general  rule  is  that 
the  measure  of  damages  for  conversion  is  the  value  of  the  property 
at  the  time  of  the  conversion.  This  rule  has  been  modified  with  re- 
spect to  the  conversion  of  stocks  and  bonds,  commercial  securities  vend- 
ible in  the  market,  the  market  value  of  which  is  liable  to  frequent  and 
great  fluctuations,  caused  by  the  depression  and  inflation  of  prices  in 
the  market.N  Markham  v.  Jaudon,  41  N.  Y.  235 ;  Baker  v.  Drake,  53 
N.  Y.  211, 13  Am.  Rep.  507,  66  N.  Y.  518,  23  Am.  Rep.  80;  Gruman 
v.  Smith,  81  N.  Y.  25 ;  Colt  v.  Owens,  90  N.  Y.  368.  These  deci- 
sions were  made  in  cases  where  the  transactions  were  dealings  be- 
tween the  customer  and  broker  in  the  purchase  and  sale  of  stocks  on 
a  margin.  Subsequently  the  same  rule  was  applied  where  the  owner 
of  stock  for  which  he  had  paid  full  value,  and  which  he  held  as  an 
investment,  put  it  in  the  hands  of  a  broker  as  collateral  security  for 
the  debt  of  a  third  person,  upon  condition  that  it  should  not  be  sold  for 
six  months,  the  stock  having  been  sold  without  the  owner's  authority 

5  5  The  course  of  the  New  York  decisions  in  the  highest  court  of  New  Yorli 
to  the  principal  case  is  completed  by  the  addition  of  the  following  cases: 
Suydam  v.  Jenkins,  3  Sandf.  614  (1850) ;  Romaine  v.  Van  Allen,  26  N.  Y.  309 
(1863) ;  Burt  v.  Dutcher,  34  N.  Y.  493  (1860) ;  Markham  v.  Jaudon,  41  N.  Y. 
236  (1869) ;  Matthews  v.  Coe,  49  N.  Y.  57  (1872) ;  Lobdell  v.  Stowell,  51  N. 
Y.  70  (1872) ;  Gruman  v.  Smith,  81  N.  T.  25  (1880) ;  COU  v.  Owens,  90  N.  Y. 
368  (1882). 

5  6  Part  of  the  opinion  is  omitted,  and  the  statement  of  facts  is  rewritten. 


Ch.   1)  FLrCTUATIONS    IN    VALUE. 


369 


before  the  expiration  of  that  time.  Under  the  decisions  of  the  New 
York  courts,  reasonable  time,  where  the  facts  are  undisputed,  is  a 
question  of  law  for  the  court.  Wright  v.  Bank,  110  N.  Y.  238,  18  N. 
E.  79,  1  L.  R.  A.  289,  6  Am.  St.  Rep.  35G.  In  Colt  v.  Owens,  90  N. 
Y.  368,  30  days  after  the  sale  and  notice  of  it  was  regarded  as  reason- 
able time. 

/The  rule  of  the  highest  intermediate  value  between  the  time  of  the 
conversion  and  the  time  of  the  trial  has  been  rejected  in  the  Supren-.e 
Court  of  the  United  States  as  the  proper  measure  of  damages,  and  the 
rule  that  the  highest  intermediate  value  between  the  time  of  the  con- 
version and  a  reasonable  time  after  the  owner  has  received  notice  of 
it  was  adopted  as  the  correct  view  of  the  law ;  for  the  reason,  as  ex- 
pressed by  Mr.  Justice  Bradley,  that  more  transactions  of  this  kind 
arise  in  the  state  of  New  York  than  in  all  other  parts  of  the  country, 
and  that  the  New  York  rule,  as  finally  settled  by  its  Court  of  Ap- 
peals has  the  most  reason  in  its  favor.  Galigher  v.  Jones,  129  U.  S. 
194,  9  Sup.  Ct.  335,  32  L.  Ed.  658.  (The  principle  upon  which  this 
doctrine  rests  is  the  consideration  that  the  general  rule  that  in  an  ac- 
tion for  a  conversion  the  market  value  of  the  property  at  the  time  of 
the  conversion  would  afford  an  inadequate  remedy,  or  rather  no 
remedy  at  all,  for  the  real  injury,  which  consisted  in  the  wrongful 
sale  of  property  of  a  fluctuating  value  at  an  unfavorable  time,  chosen 
by  the  broker  himself;  hence  the  cost  of  replacing  the  securities  by  a 
purchase  in  the  market,  allowing  a  reasonable  time  for  that  purpose, 
has  been  regarded  as  the  proper  measure  of  damages.  :  As  was  said  by 
Mr.  Justice  Bradley  in  Galigher  v.  Jones :  "A  reasonable  time  after 
the  wrongful  act  complained  of  is  to  be  allowed  to  the  party  injured 
to  place  himself  in  the  position  he  would  have  been  in  had  not  his  rights 
been  invaded." 

The  general  rule  that  the  market  value  at  the  time  of  the  conversion 
is  the  measure  of  damages  being  found  to  be  impracticable  in  these 
cases,  and  having  been  abandoned,  the  effort  has  been  to  obtain  some 
rule  by  which  substantial  justice,  as  near  as  may  be,  may  be  attained. 
In  England  the  market  value  at  the  time  of  the  trial  appears  to  be  the 
measure  of  damages.  Owen  v.  Routh,  14  C.  B.  327.  In  some  of  the 
sister  states  the  rule  of  the  highest  intermediate  price  before  the  trial 
has  been  adopted.  In  New  York,  and  in  most  of  the  sister  states,  as 
well  as  in  the  Supreme  Court  of  the  United  States,  the  formula  which 
has  been  called  the  ''New  York  Rule"  has  been  adopted,  and  is  the  rule 
which  will  accomplish  the  most  complete  justice  in  the  ordinary  trans- 
actions between  the  broker  and  his  customer  dealing  in  stocks  when  an 
unauthorized  sale  is  the  act  of  conversion.  In  such  cases  the  customer 
has  a  choice  of  remedies.  He  may  claim  the  benefit  of  the  sale,  and 
take  the  proceeds;  he  may  require  the  broker  to  replace  the  stock,  or 
replace  it  himself,  and  charge  the  broker  for  the  loss ;  or  he  may  re- 
cover the  advance  in  the  market  price  up  to  a  reasonable  time  within 
Gilb.Dam.— 24 


370  COMPENSATORY   DAMAGES.  (Part   5 

which  to  replace  it  after  notice  of  the  sale.  Cook,  Stock  &  S.  460. 
But  where  stocks  and  negotiable  securities  are  pledged  as  collateral 
security  for  the  payment  of  a  debt  to  become  due  and  payable  on  a 
future  day,  another  element  enters  into  the  consideration  of  the  com- 
pensation to  be  awarded  to  the  owner  of  the  securities  for  the  unau- 
thorized sale  of  them  before  the  debt  matures.  Upon  such  a  bailment 
it  is  the  duty  of  the  pledgee  to  keep  the  securities  in  hand  at  all  times 
ready  to  be  delivered  to  the  pledgor  on  the  payment  of  the  debt.  Cook, 
Stock  &  S.  469-471. 

An  unauthorized  sale  before  the  debt  matures  is  a  conversion,  for 
which  the  pledgor  may  have  remedy  in  the  manner  above  mentioned. 
But  the  sale  may  be  made  when  the  market  value  is  depreciated,  and 
the  market  with  a  downward  tendency.  The  market  may  revive,  and 
prices  be  enhanced  before  the  debt  matures.  Under  such  circum- 
stances, a  rule  that  the  pledgor  shall  be  at  liberty  to  elect  to  treat  the 
unauthorized  sale  as  a  conversion,  or  to  hold  the  pledgee  for  the  breach 
of  his  duty  to  keep  the  securities  until  the  maturity  of  the  debt,  and 
recover  as  damages  the  market  value  of  the  securities  as  of  that  time, 
would  commend  itself  in  reason  and  justice.  As  applied  to  the  facts 
of  this  case,  this  rule  would  be  eminently  just.  The  plaintiff  in  good 
faith  sold  the  securities  in  the  manner  authorized  by  the  contract  of 
pledge.  The  breach  of  duty  was  in  selling  at  an  unauthorized  time. 
The  debt  was  not  paid  or  tendered  at  maturity;  and  if  the  plaintiff 
had  held  the  stock,  and  sold  it  at  that  lime,  the  sale  would  have  beei' 
strictly  in  conformity  with  the  power.  |lf  the  defendants  lost  anything 
by  the  sale  at  a  time  unauthorized,  they  would  be  recompensed  for  that 
loss  by  an  award  of  damages  equivalent  to  the  market  value  of  the 
securities  at  the  time  the  debt  became  due.,  Tested  by  either  of  these 
standards,  the  proper  credit  was  allowed,  the  proof  being  that  the 
prices  of  the  securities  were  less  when  the  note  matured  than  when 
the  securities  were  sold.  No  evidence  of  an  increased  price  prior  to 
December,  1886,  was  produced.     *     *     * 


u 


A 


P-l' 


PINKERTON  v.  MANCHESTER  &  L.  RAILROAD. 
(Supreme  Judicial  Court  of  New  Hampsliire,  1861.    42  N.  H.  424.) 

BeIvLOWS,  J.^^  *  *  *  This  is  an  action  of  assumpsit,  for  re- 
fusing, on  demand,  to  give  to  the  plaintiff  a  certificate  of  twenty-nine 
shares  of  the  stock  of  Manchester  &  Lawrence  Railroad,  and  to  pay 
him  the  dividends  on  the  same  stock.     *     *     * 

There  being,  then,  much  conflict  in  the  authorities,  the  question  is 
to  be  settled  upon  principle ;  and  it  may  be  assumed  that  the  plaintiff 
is  entitled  to  such  damages  as  will  be  a  full  indemnity  for  withhold- 
ing the  stock.    The  general  rule  is,  undoubtedly,  that  he  shall  have  the 

BT  Part  of  the  opinion  is  omitted. 


Ch.  1)  FLUCTUATIONS    IN    VALUE.  371 

value  of  the  property  at  the  time  of  the  breach ;  and  this  is  a  plain  and 
just  rule  and  easy  of  application,  and  we  are  unable  to  yield  to  the 
reasons  assigned  for  the  exception  which  has  been  sanctioned  in  New 
York  and  elsewhere.     It  is  true  that,  in  some  cases,  the  plaintiff  may 
have  been  injured  to  the  extent  of  the  value  of  the  property  at  the 
highest  market  price  between  the  breach  and  the  time  of  trial.    But  it 
is  equally  true  that,  in  a  large  number  of  cases,  and,  perhaps,  gen- 
erally, it  would  not  be  so.    In  that  large  class  of  cases  where  the  arti- 
cles to  be   delivered  entered  into   the   common  consumption  of  the 
country,  in  the  shape  of  provisions,  perishable  or  otherwise,  horses, 
cattle,  raw  material,  such  as  wool,  cotton,  hides,  leather,  dye  stuffs, 
etc.,  to  hold  that  the  plaintiff  might  elect,  as  the  rule  of  damages  in  all 
cases,  the  highest  market  price  between  the  time  fixed  for  the  delivery 
and  the  day  of  trial,  which  is  often  many  years  after  the  breach,  would, 
in  many  cases,  be  grossly  unjust,  and  give  to  the  plaintiff  an  amount 
of  damages  disproportioned  to  the  injury.    For,  in  most  of  these  cases, 
had  the  articles  been  delivered  according  to  the  contract,  they  would 
have  been  sold  or  consumed  within  the  year,  and  no  probability  of 
reaping  any  benefit  from  the  future  increase  of  prices.    So  there  may 
be  repeated  trials  of  the  same  cause,  by  review,  new  trial,  or  other- 
wise.    Shall  there  be  a  different  measure  of  value  at  each  trial?  I  In 
the  case  of  stocks,  in  regard  to  which  the  rule  in  England  originated, 
there  are,  doubtless,  cases,  and  a  great  many,  where  they  are  pur- 
chased as  a  permanent  investment,  and  to  be  held  without  regard  to 
fluctuations;  and  to  hold  that  the  damages  should  be  the  highest  price 
between  the  breach  and  trial,  when  there  is  no  reason  to  suppose  that 
a  sale  would  have  been  made  at  that  precise  time,  would  also  be  unjust. 
But  it  may  be  fairly  assumed  that  a  very  large  portion  of  the  stocks 
purchased  are  purchased  to  be  sold  soon ;   and  to  give  the  purchaser, 
in  case  of  a  failure  to  deliver  such  stock,  the  right  to  elect  their  value 
at  any  time  before  the  trial,  which  might  often  be  several  years,  would 
be  giving  him  not  indemnity  merely,  but  a  power,  in  many  instances, 
of  unjust  extortion,  which  no  court  could  contemplate  without  pain. 

In  view  of  such  results,  the  courts  in  England  and  New  York  have 
been  inclined  to  shrink  from  the  application  of  that  rule,  in  many  cases ; 
and  it  has  been  held  that  it  would  not  be  applied  where  the  action  was 
not  brought  in  a  reasonable  time ;  and  this,  undoubtedly,  because  of 
the  injustice  of  allowing  the  plaintiff  to  take  advantage  of  the  fluctua- 
tions of  many  years.  But  even  if  brought  in  a  reasonable  time,  and 
what  is  a  reasonable  time  is  not  easy  to  say,  there  might  be  often  a 
lapse  of  many  years  before  a  final  trial.  In  actions  of  trover,  trespass 
and  replevin,  there  would  be  stronger  reasons  for  the  application  of 
such  a  distinction  than  in  cases  of  contract;  inasmuch  as  the  plam- 
tiff  is  not  only  deprived  of  the  use  of  his  property,  and  the  means  to 
replace  it  from  the  avails,  but  is  so  deprived  by  the  tort  of  the  de- 
fendant. If,  then,  the  rule  is  just,  it  should  be  applied  in  these  ac- 
tions, the  form  of  the  action  not  being  material  in  this  respect;    and 


372  COMPENSATORY  DAMAGES.  (Part    5 

in  jurisdictions  wliere  this  doctrine  is  recognized  it  has  been  so 
applied,  as  in  Wilson  v.  Mathews,  24  Barb.  (N.  Y.)  295,  and  Gun- 
ning V.  Wilkinson,  1  C.  &  P.  625,  which  was  trover  for  East  Indian 
warrants  for  cotton.  In  Wilson  v.  Mathews,  the  highest  market  price 
between  the  breach  and  the  day  of  trial  was  held  to  be  the  rule. 

In  this  state  no  such  rule  has  been  adopted,  and  it  requires  no  cita- 
tion of  authorities  to  show  that,  as  applied  to  actions  of  trespass,  trov- 
er or  replevin,  it  would  find  no  countenance  here. 

The  same  reasons  which  oppose  the  right  of  electing  the  value  at 
any  intermediate  day,  as  the  rule  of  damages,  apply  also  to  an  elec- 
tion between  the  time  of  the  breach  and  the  time  of  the  trial;  and  we 
are  disposed  to  hold  the  value  at  the  time  of  the  breach,  or  when  the 
articles  ought  to  have  been  delivered,  as  the  just  and  convenient 
rule.    V     *     * 

INGRAM  V.   RANKIN   et  al. 
(Supreme  Court  of  Wisconsin,  1879.     47  Wis.  406,  2  N.  W.  755.) 

Taylor,  J.^*  This  is  an  action  to  recover  for  the  value  of  a  quantity 
of  hay,  wheat  and  oats,  which  the  plaintiff  claims  to  own,  and  which 
he  alleges  was  wrongfully  and  unlawfully  taken  from  his  possession 
by  the  defendants  and  converted  to  their  use.  The  plaintiff  recover- 
ed, and  from  the  judgment  entered  in  his  favor  the  defendants  appeal- 
ed to  this  court.     *     *     * 

The  plaintiff  had  a  lease  of  the  land,  upon  which  the  hay  and  grain 
were  raised,  from  one  Hammond.  The  defendants  were  judgment 
creditors  of  Hammond,  and  took  such  hay  and  grain  upon  and  by  vir- 
tue of  an  execution  issued  upon  a  judgment  against  him.     *     *     * 

We  think  the  uniform  course  of  decision  is  that  the  measure  of  dam- 
ages is  the  value  of  the  property  at  the  time  fixed  for  the  delivery;  or 
at  the  time  of  the  conversion,  with  interest  to  the  day  of  trial ;  the 
only  exception  to  the  rule  being  that  in  case  of  replevin,  where  the 
property  is  in  esse,  and  supposed  to  be  in  the  hands  of  the  defendant 
at  the  time  of  the  trial,  and  plaintiff  recovers,  he  may  recover  as  his 
damages  the  value  of  the  property  on  the  day  of  trial,  excluding  any 
value  added  to  the  same  by  labor  or  money  of  the  defendant  or  those 
under  whom  he  claims.     *     *     * 

It  is  said  that  the  rule  giving  as  damages  the  highest  market  value, 
intermediate  the  conversion  or  day  of  delivery  and  the  day  of  trial, 
should  be  applied  to  articles  of  trade  and  commerce  which  fluctuate  in 
value  from  day  to  day,  and  that  to  adhere  to  rule  of  value  at  the  time 
of  the  conversion  would  in  many  cases  allow  the  wrongdoer  to  make 
profit  out  of  his  own  wrong,  or  at  all  events  it  might  prevent  the  plain- 
tiff from  taking  advantage  of  a  rising  market,  and  thereby  might  de- 
es Part  of  tlie  opinion  is  omitted. 


Ch.  1)  FLUCTUATIONS    IN    VALUE. 

prive  him  of  his  reasonable  expectations  of  profit  from  his  investments. 
(Tnere  can  be  no  force  in  the  argument  that  the  defendant  would  be 
allowed  to  make  money  out  of  his  own  tortious  act.    If  the  wrongdoer 
sells  the  property  which  he  has  unlawfully  taken  from  another,  the 
owner  of  the  property  can  waive  the  tort  and  sue  the  tort-feasor  for 
the  money  he  has  received  upon  such  sale  of  his  property,  and  thereby 
prevent  him  from  making  a  profit  out  of  his  wrong.     But  the  rule 
which  allows  the  plaintiff  to  recover  the  highest  market  value  is  ob- 
jectionable, because  it  allows  him  to  recover  speculative  damages,  es- 
pecially when  a  long  time  elapses  between  the  conversion  and  the  day 
of  trial.    In  most  cases  property  which  rapidly  changes  in  value  is  not 
retained  in  the  possession  or  ownership  of  one  person  for  a  great 
length  of  time,  and  it  would  be  a  matter  of  the  utmost  doubt  whether 
the  plaintiff,  had  he  not  been  deprived  of  the  possession  of  his  prop- 
erty, would  have  realized  the  highest  market  value  to  which  it  might 
have  attained  during  the  time  of  the  conversion  and  the  time  of  trial ; 
and  in  those  cases  where  the  market  value  is  very  fluctuating  great  in- 
justice would  be  done  by  this  rule  to  the  man  who  honestly  converted 
such  property,  in  the  belief  that  it  was  his  own,  if,  after  the  lapse  of 
five  or  six  years,  he  should  be  called  upon  to  pay  the  highest  market 
value  it  had  attained  during  the  time.    The  hardship  of  enforcing  this 
rule  in  the  case  of  stocks,  which  is  perhaps  property  of  the  most  unfixed 
value,  forced  the  Court  of  Appeals  in  New  York  to  repudiate  the  rule, 
after  it  had  been  partially  adopted  by  the  courts  of  that  state.     *     *     * 
The  difficulties  and  injustice  of  the  rule  of  the  highest  market  price 
has  led  to  various  modifications  of  it  by  the  courts  which  have  adopted 
it,  some  courts  having  so  modified  it  as  to  confine  it  to  the  highest  price 
between  the  date  of  conversion  and  the  commencement  of  the  action, 
others  to  the  time  of  the  commencement  of  the  action,  provided  the 
action  be  commenced  within  a  reasonable  time,  and  others  between  the 
time  of  conversion  and  the  time  of  trial,  provided  the  action  be  com- 
menced within  a  reasonable  time.     *     *     * 

Mr  Field,  in  his  work  upon  the  Law  of  Damages,  after  an  examina- 
tion of  all  the  cases,  says :  "The  rule  of  valuation  of  the  property  at 
the  time  of  the  conversion,  with  interest,  prevails  in  Massachusetts, 
where  there  is  no  claim  for  special  damages,  and  this  general  rule  has 
been  recognized  in  Pennsylvania,  Kentucky,  Missouri,  West  Virginia, 
New  Hampshire,  Connecticut,  Maine,  Vermont,  Illinois.  Wisconsin, 
Louisiana,  Mississippi,  Nevada,  Florida,  Delaware,  Maryland,  Minne- 
sota, New  York,  Texas,  and  Iowa."     *     *     * 

The  rule  fixing  the  measure  of  damages  in  actions  for  breaches  of 
contract  for  the  delivery  of  chattels,  and  in  all  actions  for  the  wrong- 
ful and  unlawful  taking  of  chattels,  whether  the  taking  was  such  as 
would  formerly  have  been  denominated  trespass  de  bonis,  or  trover, 
at  the  value  of  the  chattels  at  the  time  when  delivery  ought  to  have 
been  made,  or  at  the  taking  or  conversion,  with  interest,  is  certainly 
founded  upon  principle.     It  harmonizes  with  the  rule  which  restricts 


374  COMPENSATORY  DAMAGES.  (Part   5 

the  plaintiff  to  compensation  for  his  loss,  and  is  as  just  and  equitable 
as  any  other  general  rule  which  the  courts  have  been  able  to  pre- 
scribe, and  has  greatly  the  advantage  of  certainty  over  all  others. 

We  have  concluded,  therefore,  to  adhere  to  the  general  rule  laid 
down  by  this  court  in  the  cases  cited,  and  hold  that  in  all  actions  ei- 
ther upon  contract  for  the  non-delivery  of  goods,  or  for  the  tortious 
taking  or  conversion  of  the  same,  "unless  the  plaintiff  is  deprived  of 
some  special  use  of  the  property  anticipated  by  the  wrongdoer,"  and 
in  the  absence  of  proof  of  circumstances  which  would  entitle  the  plain- 
tiff" to  recover  exemplary  or  punitory  damages,  the  measure  of  dam- 
ages is^first,  the  value  of  the  chattels  at  the  time  and  place  when  and 
where  the  same  should  have  been  delivered,  or  of  the  wrongful  taking 
or  conversion,  with  interest  on  that  sum  to  the  date  of  trial  i  (second, 
if  it  appears  that  the  defendant,  in  case  of  a  wrongful  taking  or  con- 
version, has  sold  the  chattels,  the  plaintiff  may,  at  his  election,  recover 
as  his  damages  the  amount  for  which  the  same  were  sold,  with  interest 
from  the  time  of  the  sale  to  the  day  of  trial;  third,  if  it  appears  that 
the  chattels  wrongfully  taken  or  converted  are  still  in  the  possession 
of  the  defendant  at  the  time  of  the  trial,  the  plaintiff  may,  at  his  elec- 
tion, recover  the  present  value  of  the  same  at  the  place  where  the 
same  were  taken  or  converted,  in  the  form  they  were  in  when  so  taken 
or  converted. 

These  rules  will  prevent  the  defendant  from  making  profit  out  of 
his  own  wrong,  will  give  the  plaintiff  the  benefit  of  any  advance  in  the 
price  of  the  chattels  when  defendant  holds  possession  of  the  same  at 
the  time  of  the  trial,  and  on  the  whole  be  much  more  equitable  than 
the  rule  given  by  the  court  below.     *     *     *  °* 


(C)  Addition  of  Value  by  Wrongdoer. 
MARTIN  v.  PORTER. 

(Court  of  Exchequer,  1839.    5  Mees.  &  W.  351.) 

At  the  trial  before  Parke,  B.,  at  the  York  spring  assizes,  it  appeared 
that  the  plaintiff  was  a  lessee  of  coal  mines  under  the  Duke  of  Leeds, 
and  that  the  defendant  was  the  owner  of  the  adjoining  estate.  In  the 
year  1838,  in  consequence  of  inquiries  having  been  instituted,  it  was 

c9  When  the  action  is  on  a  replevin  bond,  the  value  at  the  time  of  the  trial 
must  be  the  measure  of  damages,  for  the  contract  is  to  deliver  or  to  pay  the 
then  value  of  the  article  replevined.  Clement  v.  Duffy,  54  Iowa,  632,  7  N.  W. 
85  (ISSO). 

Other  important  cases  upon  the  higher  intermediate  value  rule  are  Gali- 
gher  v.  Jones,  129  U.  S.  193,  9  Sup.  Ct.  335,  32  L.  Ed.  658  (1889) ;  Neiler  v. 
Kelley,  69  Pa.  403  (1871) ;  Page  v.  Fowler,  39  Cal.  412,  2  Am.  Rep.  462  (1870)  ; 
Chadwick  v.  Butler,  28  Mich.  349  (1873) ;  Cannon  v.  Folsom,  2  Iowa,  101,  63 
Am.  Dec.  474  (1856). 


Ch.  1)  ADDITION    OF    VALI'E    BY    WRONGDOER.  375 

discovered  that  the  defendant  had  worked  the  coal  under  the  plain- 
tiff's land,  to  an  extent  exceeding  a  rood.  The  defendant,  by  paying 
money  into  court,  admitted  the  trespass;  and  the  only  question  at  the 
trial  was,  upon  what  principle  the  damages  were  to  be  assessed ;  the 
plaintiff  contending  that  he  had  a  right  to  hold  the  defendant  liable  for 
the  value  of  the  coal  when  gotten,  and  when  first  it  existed  as  a  chat- 
tel, without  any  deduction  for  the  expense  of  getting  it;  that  he  ought 
also  to  pay  for  the  underground  way-leave,  having  carried  coals  from 
his  own  colliery  through  the  plaintiff's  bed  of  coal.  The  learned  judge 
was  of  opinion  that  the  plaintiff  would  have  been  entitled  in  an  action 
of  trover  to  the  value  of  the  coal  as  a  chattel,  either  at  the  pit's  mouth 
or  on  the  canal  bank,  if  the  plaintiff  had  demanded  it  at  either  place, 
and  the  defendant  had  converted  it,  without  allowing  the  defendant 
any  thing  for  having  worked  and  brought  it  there;  that,  not  having 
made  such  a  demand,  and  this  action  being  trespass,  he  was  entitled 
to  the  value  of  the  coal  as  a  chattel  at  the  time  when  the  defendant  be- 
gan to  take  it  away,  that  is,  as  soon  as  it  existed  as  a  chattel,  which 
value  would  be  the  sale  price  at  the  pit's  mouth,  after  deducting  the 
expense  of  carrying  the  coals  from  the  place  in  the  mine  where  they 
were  got  to  the  pit's  mouth;  and  that  he  was  also  entitled  to  compensa- 
tion for  the  defendant's  passing  through  his  coal,  with  coals  gotten 
from  his  own  mines,  and  ought  to  pay  as  for  a  way-leave,  which,  in 
the  neighbourhood  of  Leeds,  was  proved  to  be  2d.  per  ton.  The  jury 
adopted  the  above  principle,  and  found  the  value  of  the  coals,  when 
got,  to  be  £251.  9s.  6d. ;  and  they  also  gave  ioO.  for  the  use  of  the 
way-leave,  making  together  iSOl.  9s.  6d.  The  learned  judge  gave  the 
defendant  leave  to  move  to  reduce  the  damages  to  £16.,  if  this  court 
should  be  of  opinion  that  the  proper  measure  of  damages  was  the  value 
of  the  coal  in  the  bed,  which  the  jury  estimated  at  £1-19.®° 

Lord  Abinger,  C.  B.  I  am  of  opinion  that  there  ought  to  be  no 
rule  in  this  case.  If  the  plaintiff  had  demanded  the  coals  from  the  de- 
fendant, no  lien  could  have  been  set  up  in  respect  of  the  expense  of 
getting  them.  How,  then,  can  he  now  claim  to  deduct  it?  He  cannot 
set  up  his  own  wrongs.  The  plaintiff  had  a  right  to  treat  these  coals 
as  a  chattel  to  which  he  was  entitled.  He  did  so,  and  the  only  ques- 
tion then  was  their  value.  That  the  jury  have  found.  It  may  seem  a 
hardship  that  the  plaintiff  should  make  this  extra  profit  of  the  coal,  but 
still  the  rule  of  law  must  prevail. 

Parke,  B.  I  remain  of  the  same  opinion  as  I  entertained  at  the 
trial.  The  plaintiff  is  entitled  to  be  placed  in  the  same  situation  as  if 
these  coals  had  been  chattels  belonging  to  himself,  which  had  been  car- 
ried away  by  the  defendant,  and  must  be  paid  their  value  at  the  time 
they  were  begun  to  be  taken  away.  He  had  a  right  to  them,  without 
being  subject  to  the  expense  of  getting  them,  which  was  a  wrongful  act 

6  0  The  statement  as  abridged  from  that  of  the  official  repoi't.  atid  arguments 
of  counsel  are  omitted. 


376  COMPENSATORY  DAMAGES.  (Part    5 

by  the  defendant,  and  for  which  the  defendant  cannot  claim  to  be  re- 
imbursed. I  am  not  sorry  this  rule  is  adopted ;  as  it  will  tend  to  pre- 
i^ent  trespasses  of  this  kind,  which  are  generally  willful.*^ 


FORSYTH  V.  WELLS. 

(Supreme  Court  of  Pennsylvania,  1SG2.     41   Pa.  291,  80  Am.   Dec.  617.) 

LowRiE,  C.  J.  We  are  to  assume  that  it  was  by  mistake  that  the 
defendant  below  went  beyond  his  line  in  mining  his  coal,  and  mined 
and  carried  away  some  of  the  plaintiff's  coal,  and  it  is  fully  settled 
that  for  this  trover  lies.  Mather  v.  Church,  3  Serg,  &  R.  515,  8  Am, 
Dec.  6G3 ;  Wright  v.  Guier,  9  Watts,  1?2,  36  Am.  Dec.  108 ;  Sander- 
son V.  Haversteck,  8  Pa.  294 ;  Stafford  v.  Ames,  9  Pa.  343 ;  Backen- 
stoos  V.  Stahler's  Adm'r,  33  Pa.  251,  75  Am.  Dec.  592. 

What,  then,  is  the  measure  of  damages?  The  plaintiff  insists  that 
because  the  action  is  allowed  for  the  coal  as  personal  property,  that 
is,  after  it  had  been  mined  or  severed  from  the  realty,  therefore,  by 
necessary  logical  sequence,!  she  is  entitled  to  the  value  of  the  coal  as  it 
lay  in  the  pit  after  it  had  been  mined ;  and  so  it  was  decided  below.  It 
is  apparent  that  this  view  would  transfer  to  the  plaintiff  all  the  de- 
fendant's labour  in  mining  the  coal,  and  thus  give  her  more  than  com- 
pensation for  the  injury  done. 

Yet  we  admit  the  accuracy  of  this  conclusion,  if  we  may  properly 
base  our  reasoning  on  the  form,  rather  than  on  the  principle  or  pur- 
pose of  the  remedy.  But  this  we  may  not  do ;  and  especially  we  may 
not  sacrifice  the  principle  to  the  very  form  by  which  we  are  endeavour- 
ing to  enforce  it.  Principles  can  never  be  realized  without  forms,  and 
they  are  often  inevitably  embarrassed  by  unfitting  ones;  but  still  the 
fact  that  the  form  is  for  the  sake  of  the  principle,  and  not  the  principle 
for  the  form,  requires  that  the  form  shall  serve,  not  rule,  the  principle, 
and  must  be  adapted  to  its  office. 

Just  compensation  in  a  special  class  of  cases  is  the  principle  of  the 
action  of  trover,  and  a  little  study  will  show  us  that  it  is  no  unyielding 
form,  but  adapts  itself  to  a  great  variety  of  circumstances.  In  its 
original  purpose,  and  in  strict  form,  it  is  an  action  for  the  value  of 
personal  property  lost  by  one  and  found  by  another,  and  converted  to 
his  own  use.  But  it  is  not  thus  restricted  in  practice ;  for  it  is  con- 
tinually applied  to  every  form  of  wrongful  conversion,  and  of  wrong- 
ful taking  and  conversion,  and  it  affords  compensation  not  only  for  the 
value  of  the  goods,  but  also  for  outrage  and  malice  in  the  taking  and 

61  Alderson  and  Maule,  BB.,  concur. 

See,  also,  Jegon  v.  Vivian,  L.  R.  6  Ch.  App.  742  (1871) ;  Morgan  v.  Powell, 
3  Q.  B.  278  (1842) ;  Wild  v.  Holt,  9  Mees.  &  W.  672  (1842) ;  Llynvi  Co.  v. 
Rrogden,  L.  R,  11  Eq.  188  (1870) ;  Livingston  v.  Coal  Co.,  L.  R.  5  App.  Cas. 
iS  (1880), 


Ch.  1)  ADDITION    OF    VALUE    BY    WRONGDOER.  377 -^ 

detention  of  them.  Dennis  v.  Barber,  6  Serg.  &  R.  426;  Berry  v. 
Vantries,  12  Serg.  &  R.  93 ;  Taylor  v.  Morgan,  3  Watts,  333.  Thus 
form  yields  to  purpose  for  the  sake  of  completeness  of  remedy.  Even 
the  action  of  replevin  adapts  itself  thus:  M'Donald  v.  Scaife,  11  Pa. 
381,  51  Am.  Dec.  556.  And  so  does  trespass.  Morrison  v.  Robinson, 
31  Pa.  456. 

In  very  strict  form,  trespass  is  the  proper  remedy  for  a  wrongful 
taking  of  personal  property,  and  for  cutting  timber,  or  quarrying 
stone,  or  digging  coal  on  another  man's  land  and  carrying  it  away; 
and  yet  the  trespass  may  be  waived  and  trover  maintained,  without 
giving  up  any  claim  for  any  outrage  or  violence  in  the  act  of  taking. 
Moore  v.  Shenk,  3  Pa.  13,  45  Am.  Dec.  618.  It  is  quite  apparent, 
therefore,  that  this  form  of  action  is  not  so  uniform  and  rigid  in  its 
administration  as  to  force  upon  us  any  given  or  arbitrary  measure  of 
compensation.  It  is  simply  a  form  of  reaching  a  just  compensation, 
according  to  circumstances,  for  goods  wrongfully  appropriated.  When 
there  is  no  fraud,  or  violence,  or  malice,  the  just  value  of  the  property 
is  enough.    McNair  v.  Compton,  35  Pa.  28. 

When  the  taking  and  conversion  are  one  act,  or  one  continued  series 
of  acts,  trespass  is  the  more  obvious  and  proper  remedy;  but  the  law 
allows  the  waiver  of  the  taking,  so  that  the  party  may  sue  in  trover ; 
and  this  is  often  convenient.  Sometimes  it  is  even  necessary ;  because 
the  plaintiff,  with  full  proof  of  the  conversion,  may  fail  to  prove  the 
taking  by  the  defendant.  But  when  the  law  does  allow  this  departure 
from  the  strict  form,  it  is  not  in  order  to  enable  the  plaintiff,  by  his 
own  choice  of  actions,  to  increase  his  recovery  beyond  just  compensa- 
tion ;  but  only  to  give  him  a  more  convenient  form  for  recovering  that 
much.  Our  case  raises  a  question  of  taking  by  mere  mistake,  because 
of  the  uncertainty  of  boundaries;  and  we  must  confine  ourselves  to 
this.  The  many  conflicting  opinions  on  the  measure  of  damages  in 
cases  of  wilful  wrong,  and  especially  the  very  learned  and  thoughtful 
opinions  in  the  case  of  Silsbury  v.  McCoon,  4  Denio  (N.  Y.)  333,  and 
3  N.  Y.  379,  53  Am.  Dec.  307,  warn  us  to  be  careful  how  we  express 
ourselves  on  that  subject. 

We  do  find  cases  of  trespass,  where  judges  have  adopted  a  mode  of 
calculating  damages  for  taking  coal,  that  is  substantially  equivalent  to 
the  rule  laid  down  by  the  common  pleas  in  this  case,  even  where  no 
wilful  wrong  was  done,  unless  the  taking  of  the  coal  out  by  the  plain- 
tiff's entry  was  regarded  as  such.  But  even  then,  we  cannot  avoid 
feeling  that  there  is  a  taint  of  arbitrariness  in  such  a  mode  of  calcula- 
tion, because  it  does  not  truly  mete  out  just  compensation.  Martin 
V.  Porter,  5  M.  &  W.  351 ;  Wild,  et  al.  v.  Holt,  9  M.  &  W.  672 ;  Mor- 
gan v.  Powell,  3  Q.'s  B.  283.  And  see  28  Eng.  Law  &  Eq.  175.  We 
prefer  the  rule  in  Wood  v.  Morewood,  3  Queen's  B.  440,  note,  where 
Parke,  B.,  decided,  in  a  case  of  trover  for  taking  coals,  that  if  the  de- 
fendant acted  fairly  and  honestly,  in  the  full  belief  of  his  right,  then 
the  measure  of  damages  is  the  fair  value  of  the  coals,  as  if  the  coal 


378  COMPENSATORY   DAMAGES.  (Part    5 

field  had  been  purchased  from  the  plaintiffs.  See,  also,  Bainbridge  on 
Mines  and  Minerals,  510;  Greenfield  Bank  v.  Leavitt,  17  Pick.  (Mass.) 
1,  28  Am.  Dec.  268. 

Where  the  defendant's  conduct,  measured  by  the  standard  of  ordi- 
nary morality  and  care,  which  is  the  standard  of  the  law,  is  not  charge- 
able with  fraud,  violence,  or  wilful  negligence  or  wrong,  the  value  of 
the  property  taken  and  converted  is  the  measure  of  just  compensation. 
If  raw  material  has,  after  appropriation  and  without  such  wrong,  been 
changed  by  manufacture  into  a  new  species  of  property,  as  grain  into 
whiskey,  grapes  into  wine,  furs  into  hats,  hides  into  leather,  or  trees 
into  lumber,  the  raw  either  refuses  the  action  of  trover  for  the  new 
article,  or  limits  the  recovery  to  the  value  of  the  original  article. 
Silsbury  v.  AlcCoon,  6  Hill  (N.  Y.)  425,  41  Am.  Dec.  753,  and  note; 
Hyde  v.  Cookson,  21  Barb.  (N.  Y.)  92;  Swift  v.  Barnum,  23  Conn. 
523 ;    Moody  v.  Whitney,  38  Me.  174,  61  Am.  Dec.  239. 

Where  there  is  no  wrongful  purpose  or  wrongful  negligence  in  the 
defendant,  compensation  for  the  real  injury  done  is  the  purpose  of  all 
remedies ;  and  so  long  as  we  bear  this  in  mind,  we  shall  have  but  lit- 
tle difficulty  in  managing  the  forms  of  actions  so  as  to  secure  a  fair  re- 
sult. If  the  defendant  in  thi?  case  was  guilty  of  no  intentional  wrong, 
he  ought  not  to  have  been  charged  with  the  value  of  the  coal  after  he 
had  been  at  the  expense  of  mining  it;  but  only  with  its  value  in  place, 
and  with  such  other  damage  to  the  land  as  his  mining  may  have  caus- 
ed. Such  would  manifestly  be  the  measure  in  trespass  for  mesne  prof- 
its.    Morrison  v.  Robinson,  31  Pa.  456. 

Judgment  reversed,  and  a  new  trial  awarded. 

Read,  J.,  dissented. 


BEEDE  V.  LAMPREY. 

(Supreme  Court  of  New  Hampshire,  1888.     64  N.  H.  510,  15  Atl.  133.) 

The  defendant,  while  engaged  in  an  operation  on  his  own  lot,  negli- 
gently, but  without  malice,  cut  over  the  line  dividing  the  lots,  and  cut 
down,  trimmed,  hauled  to,  and  deposited  in  the  lake  at  Melvin  village, 
in  Tuftonborough,  and  thence  towed  to  his  sawmill,  the  trees  in  ques- 
tion, which  facts  constitute  the  cause  of  action.  The  question  whether 
the  measure  of  damages  is  the  value  of  the  stumpage,  or  the  value 
of  the  logs  when  cut  and  trimmed,  or  when  deposited  in  the  lake,  or 
when  delivered  at  the  mill,  was  reserved. 

Allen,  J.®^  The  claim  of  the  plaintiff  to  recover  as  damages  the 
value  of  the  logs  at  the  mill,  which  includes  the  value  added  by  cutting 
and  transporting  them,  is  founded  upon  his  title  and  right  of  possession 
of  the  property  there,  and  his  right  to  treat  it  as  converted  at  any  time 
between  its  severance  from  the  realty  and  the  commencement  of  the 

62  Part  of  the  opinion  is  omitted. 


Ch.  1)  ADDITION    OF    VALUE    BY    -WRONODOEn.  379 

action.  The  plaintiff  had  the  title  to  the  logs  and  the  right  of  posses- 
sing them  at  the  mill.  Whenever  and  wherever  they  may  have  been 
converted,  the  conversion  did  not  change  the  title  so  long  as  the  prop- 
erty retained  its  identity.  The  title  could  be  changed  only  by  a  suit  for 
damages  with  judgment,  and  satisfaction  of  that  judgment.  Smith  v. 
Smith,  50  N.  H.  213,  219;  Dearth  v.  Spencer,  52  N.  H.  213.  The 
plaintiff  might  have  recovered  the  logs  themselves  at  the  mill,  or 
wherever  he  could  have  found  them,  and  so  availed  himself  of  their 
value  there,  by  replevin,  or  by  any  form  of  action  in  which  the  property 
in  specie,  and  not  pecuniary  damages,  are  sought.  But  in  such  a  case, 
if  the  claimant  makes  a  title,  no  question  of  damages  or  compensation 
for  loss  arises.  He  recovers  his  own  in  the  form  and  at  the  time  and 
place  in  which  he  finds  it.  In  trespass  quare  clausum,  with  an  aver- 
ment of  taking  and  carrying  away  trees,  the  plaintiff  may  recover  for 
the  whole  injury  to  the  land,  including  the  damage  for  prematurely 
cutting  the  trees,  and  for  the  loss  of  the  trees  themselves,  but  nothing 
for  the  value  added  by  the  labor  of  cutting  and  transporting  them. 
Wallace  v.  Goodall,  18  N.  H.  456;  Foote  v.  Merrill,  54  N.  H.  490,  20 
Am.  Rep.  151. 

Trover  cannot  be  maintained  for  any  injury  to  the  realty,  but  only 
for  the  conversion  of  chattels ;  and  in  this  case  the  plaintiff  is  limited 
in  his  recovery  to  the  loss  of  the  trees;  that  is,  his  loss  by  the  defend- 
ant's converting  them  by  their  severance  from  the  land.  The  usual 
rule  of  damages  in  actions  of  trover  is  compensation  to  the  owner 
for  the  loss  of  his  property  occasioned  by  its  conversion;  and  where 
the  conversion  is  complete,  and  results  in  an  entire  appropriation  of  the 
property  by  the  wrong-doer,  the  loss  is  generally  measured  by  the  value 
of  the  property  converted  with  interest  to  the  time  of  trial.  Hovey 
v.  Grant,  52  N.  H.  569 ;  Gove  v.  Watson,  61  N.  H.  136.  The  defend- 
ant converted  the  logs  by  cutting  and  severing  the  trees  from  the  land, 
and,  the  conversion  being  complete  by  that  wrongful  act,  their  value 
there  represents  the  plaintiff's  loss.  His  loss  is  no  greater  by  reason 
of  the  value  added  by  the  labor  of  cutting  and  transportation  to  the 
mill.  It  does  not  appear  that  the  logs  were  of  special  or  exceptional 
value  to  the  plaintiff  upon  the  land  from  which  they  were  taken,  nor 
that  he  had  a  special  use  for  them  other  than  obtaining  their  value  by  a 
sale,  nor  that  the  market  price  had  risen  after  their  conversion.  If,  in 
estimating  the  damages,  the  value  at  the  mill,  increased  by  the  cost  of 
cutting  and  transportation,  is  to  be  taken  as  the  criterion,  the  plaintiff 
will  receive  more  than  compensation  for  his  loss.  With  such  a  rule 
of  damages,  if,  besides  the  defendant,  another  trespasser  had  cut  logs 
of  an  equal  amount  upon  the  same  lot,  and  had  hauled  them  to  the  lake 
shore,  and  a  third  had  simply  cut  and  severed  the  trees  from  the  land, 
and  sold  them  there,  and  suits  for  their  conversion  had  been  brought 
against  each  one,  the  sums  recovered  would  differ  by  the  cost  of  trans- 
porting the  logs  to  the  place  of  the  alleged  conversion,  while  the  loss 
to  the  plaintiff  would  be  the  same  in  each  of  the  three  cases.    The  in- 


3S0  COMPENSATORY  DAMAGES.  (Part   5 

justice  of  such  an  application  of  the  rule  of  damages  is  apparent  from 
the  unequal  results.  In  Foote  v.  Merrill,  supra,  which  was  trespass 
quare  clausum,  and  for  cutting  and  removing  trees,  it  was  decided 
that  the  plaintiff  could  recover  for  the  whole  injury  to  the  land,  in- 
cluding the  value  of  the  trees  there,  but  not  any  increase  in  value 
made  by  the  cost  of  cutting  and  taking  them  away.  In  the  opinion 
it  is  said  (Hibbard,  J)  :  "If  the  owner  of  timber  cut  upon  his  land 
by  a  trespasser  gets  possession  of  it  increased  in  value,  he  has  the 
benefit  of  the  increased  value.  The  law  neither  divests  him  of  his 
property,  nor  requires  him  to  pay  for  improvements  made  without  his 
authority.  Perhaps,  in  trover,  and,  possibly,  in  trespass  de  bonis  as- 
portatis,  he  may  be  entitled  to  the  same  benefit."  This  dictum,  not  be- 
ing any  part  of,  nor  necessary  to,  the  decision  of  that  case,  and  given 
in  language  expressive  of  doubt,  cannot  be  invoked  as  a  precedent  de- 
cisive of  this  case. 

When  trespass  de  bonis  asportatis  is  coupled  with  trespass  quare 
clausum,  either  as  a  separate  count  or  as  an  averment  in  aggravation  of 
damages,  as  in  Foote  v.  Merrill,  the  increase  in  damages  by  reason  of 
such  averment  and  proof  of  it  is  the  value  of  the  chattels  taken  and 
converted ;  and  in  such  a  case  is  the  same  as  the  whole  damages  would 
have  been  in  an  action  of  trespass  de  bonis.  Smith  v.  Smith,  50  N.  H. 
212,  219.  Had  the  plaintiff  in  Foote  v.  Merrill,  sued  in  trespass  for 
taking  and  carrying  away  the  trees  merely,  he  would  have  recovered 
their  value  upon  the  lot  at  the  time  of  the  taking,  allowing  nothing  for 
the  expense  of  cutting  and  removing  them ;  and  no  good  reason  appears 
why  the  same  rule  of  damages  should  not  prevail  in  trover  as  in  tres- 
pass de  bonis  asportatis.  ^The  loss  to  the  plaintiff  from  the  taking  and 
carrying  away  of  his  property  is,  ordinarily,  the  same  as  the  conversion 
of  it  by  complete  appropriation,  and  the  rule  of  compensation  for  the 
loss  gives  him  the  value  of  his  property  at  the  time  and  place  of  taking 
or  conversion,  and  interest  from  that  time  for  its  detention. 

The  English  cases  upon  the  subject  give  as  the  rule  of  damages, 
when  the  conversion  and  appropriation  of  the  property  are  by  an  inno- 
cent mistake,  and  bona  fide,  or  where  there  is  a  real  dispute  as  to  the 
title,  the  value  of  the  property  in  place  upon  the  land,  allowing  nothing 
for  enhancement  of  value  by  labor  in  its  removal  and  improvement. 
But  when  the  conversion  is  by  fraud  or  willful  trespass,  the  full  value 
at  time  of  demand  and  refusal  is  given.     *     *     * 

The  Illinois  decisions  make  no  distinction  between  cases  of  willful 
trespass  and  those  of  conversion  by  mistake  or  inadvertence,  and  in- 
clude in  damages  all  enhancement  in  value,  from  any  cause,  before  suit 
is  brought.  Robertson  v.  Jones,  71  111.  405 ;  Coal  Co.  v.  Long,  81  111. 
359;  Railroad  Co.  v.  Ogle,  82  111.  627,  25  Am.  Rep.  342.  *  *  * 
The  weight  of  authority,  however,  in  this  country  is  in  favor  of  the 
rule  which  gives  compensation  for  the  loss;  that  is,  the  value  of  the 
property  at  the  time  and  place  of  conversion,  with  interest  after,  al- 
lowing nothing  for  value  subsequently  added  by  the  defendant,  when 


Sin— *-' 


Ch.  1)  ADDITION  OF  VALUE  BY  WRONGDOER.  381 

the  conversion  does  not  proceed  from  willful  trespass,  but  from  the 
wrongdoer's  mistake  or   from  his  honest  belief  of  ownership  in  the 
property,  and  there  are  no  circumstances  showing  a  special  and  pe-    , 
culiar  value  to  the  owner  or  a  contemplated  special  use  of  the  property   ' 
by  him.  JForsyth  v.  Wells,  41  Pa.  291,  80  Am.  Dec.  617.     *     *     * 

The  damages  must  be  according  to  the  usual  rule  in  trover,  which 
is  the  value  of  the  property  at  the  time  of  conversion,  and  interest  aft- 
er. The  severance  of  the  trees  from  the  land,  and  their  conversion 
from  real  to  personal  property,  was  in  law  a  conversion  of  the  prop- 
erty to  the  defendant's  use.  The  value  of  the  trees,  immediately 
upon  their  becoming  chattels — that  is,  as  soon  as  felled — which  is  found 
to  be  $1.50  per  thousand  feet,  with  interest  from  that  time,  the  plain- 
tiff is  entitled  to  recover.     *     *     * 


EATON  V.  LANGLEY. 

(Supreme  Court  of  Arkansas,  1898.     65  Ark.  448,  47  S.  W.  123,  42  L.  R.  A.  474.) 

Defendant,  believing  that  he  was  the  owner  and  that  he  had  a  right 
to  do  so,  cut  timber  from  plaintiff's  land  and  manufactured  it  into 
cross-ties.  The  timber  was  worth  2  cents  per  tie  when  standing,  and 
the  ties,  3,500  in  number,  were  worth  121/^  cents  each  at  the  beginning 
of  this  action.  The  complaint  alleged  plaintiff's  ownership  of  the  ties 
and  demanded  possession  thereof,  or,  if  that  could  not  be  obtained, 
their  value. 

Battle,  J.^*  *  *  *  As  a  general  rule,  an  owner  cannot  be  de- 
prived of  his  property  without  his  consent,  or  operation  of  law.  If  un- 
authorized persons  have  bestowed  expense  or  labor  upon  it,  that  fact 
cannot  constitute  a  bar  to  his  reclaiming  it,  so  long  as  identification  is 
not  impracticable.  But  there  must  be  a  limit  to  this  right.  Mr.  Jus- 
tice Blackstone  lays  down  the  rule,  very  broadly,  that  if  a  thing  is 
changed  into  a  different  species,  as  by  making  wine  out  of  another's 
grapes,  oil  from  his  olives,  or  bread  from  his  wheat,  the  product  be- 
longs to  the  new  operator,  who  is  only  to  make  satisfaction  to  the  for- 
mer proprietor  for  the  materials  converted.  2  Bl.  Comm.  404.  Many 
authorities  have  followed  this  rule,  while  others  have  held  that,  in  the 
case  of  a  willful  appropriation,  no  extent  of  conversion  can  give  to 
the  willful  trespasser  a  title  to  the  property,  so  long  as  the  original  ma- 
terials can  be  traced  in  the  improved  article.  Wetherbee  v.  Green,  22 
Mich.  311,  7  Am.  Rep.  653. 

In  McKinnis  v.  Railway,  44  Ark.  210,  and  Stotts  v.  Brookfield,  55 
Ark.  307,  18  S.  W.  179,  it  was  held  that  the  owner  of  timber  which  had 
been  taken  and.  converted  by  a  willful  trespasser  into  cross-ties  may 
recover  the  ties,  or  their  value,  in  an  action  of  replevin  against  the  tres- 
passer.   In  the  latter  case  the  court  said :  "While  it  is  difficult  to  draw 

«3  Part  of  the  opinion  is  omitted,  and  the  statement  of  facts  is  rewritten. 


382  COMPENSATORY  DAMAGES.  (Part    5 

from  the  authorities  a  rule  by  which  we  may  determine  with  certainty 
what  change  in  the  original  property  converted  will  destroy  its  identity 
so  that  replevin  will  not  lie  for  its  recovery,  it  is  settled  that  the  con- 
version of  timber  into  cross-ties  is  not  such  a  change,  whether  the 
change  has  been  wrought  by  a  willful  or  an  innocent  wrongdoer."  But 
there  was  no  occasion  for  saying  what  was  said  as  to  innocent  wrong- 
doers. In  that  case  the  defendant  entered  upon  the  land  of  plaintiff, 
and,  without  his  authority  or  consent,  knowing  at  the  time  his  claim  of 
ownership  of  the  same,  cut  timber  therefrom,  and  converted  it  into  the 
cross-ties  in  controversy.  Upon  that  fact  the  judgment  of  the  court 
was  based.  In  neither  of  these  cases  was  any  rule  laid  down  by  which 
the  identity  of  the  property  can  be  ascertained. 

The  authorities  generally  agree  in  holding  that  when  a  party  has 
taken  the  property  of  another  in  good  faith,  and,  in  reliance  upon  a 
supposed  right,  without  intention  to  commit  wrong,  converted  it  into 
another  form,  and  increased  its  value  by  the  expenditure  of  money  and 
labor,  the  owner  is  precluded  from  following  and  reclaiming  the  prop- 
erty in  its  new  form  if  the  transformation  it  has  undergone  has  con- 
verted it  into  an  article  substantially  different.  But  they  have  not 
agreed  upon  any  rule  by  which  it  can  in  all  cases  be  ascertained  wheth- 
er this  transformation  has  or  has  not  taken  place.  "If  grain  be  taken 
and  made  into  malt,  or  money  taken  and  made  into  a  cup,  or  timber 
taken  and  made  into  a  house,  it  is  held  in  the  old  English  law  that  the 
property  is  so  altered  as  to  change  the  title.  *  *  *  g^j^  cloth  made 
into  garments,  leather  into  shoes,  trees  hewed  or  sawed  into  timber, 
and  iron  made  into  bars,  it  is  said,  may  be  reclaimed  by  their  owner  in 
this  new  and  original  shape.  *  *  *  Some  of  the  cases  place  the 
right  of  the  former  owner  to  take  the  thing  in  its  altered  condition  up- 
on the  question  whether  its  identity  could  be  made  out  by  the  senses." 
Wetherbee  v.  Green,  22  Mich.  318,  319,  7  Am.  Rep.  653. 

But  the  Supreme  Court  of  Michigan  (Mr.  Justice  Cooley  delivering 
the  opinion  of  the  court)  said  that  the  test  of  the  senses  is  unsatisfac- 
tory, and  that  "no  test  which  satisfies  the  reason  of  the  law  can  be  ap- 
plied in  the  adjustment  of  questions  of  title  to  chattels  by  accession,  un- 
less it  keeps  in  view  the  circumstances  of  relative  values."  It  said: 
"It  may  often  happen  that  no  difficulty  will  be  experienced  in  deter- 
mining the  identity  of  a  piece  of  timber  which  has  been  taken  and  built 
into  a  house,  but  no  one  disputes  that  the  right  of  the  original  owner 
is  gone  in  such  a  case.  A  particular  piece  of  wood  might  perhaps  be 
traced,  without  trouble,  into  a  church  organ,  or  other  equally  valuable 
article ;  but  no  one  would  defend  a  rule  of  law  which,  because  the 
identity  could  be  determined  by  the  senses,  would  permit  the  owner  of 
the  wood  to  appropriate  a  musical  instrument,  a  hundred  or  a  thou- 
sand times  the  value  of  his  original  materials,  when  the  party  who,  un- 
der like  circumstances,  has  doubled  the  value  of  another  man's  corn 
by  converting  it  into  malt  is  permitted  to  retain  it,  and  held  liable  for 
the  original  value  only.    Such  distinctions  in  the  law  would  be  without 


Ch.  1)  ADDITION    OF    VALUE    BY    WRONGDOER.  383 

reason,  and  could  not  be  tolerated.  When  the  right  to  the  improved 
article  is  the  point  in  issue,  the  question  how  much  the  property  or 
labor  of  each  has  contributed  to  make  it  what  it  is,  must  always  be  one 
of  first  importance.  The  owner  of  a  beam  built  into  the  house  of  an- 
other loses  his  property  in  it,  because  the  beam  is  insignificant  in  value 
or  importance  as  compared  to  that  to  which  it  has  become  attached ; 
and  the  musical  instrument  belongs  to  the  maker,  rather  than  to  the 
men  whose  timber  was  used  in  making  it,  not  because  the  timber  can- 
not be  identified,  but  because  in  bringing  it  to  its  present  condition  the 
value  of  the  labor  has  swallowed  up,  and  rendered  insignificant,  the 
value  of  the  original  materials.  The  labor  in  the  case  of  the  musical 
instrument  is  just  as  much  the  principal  thing  as  the  house  is  in  the 
other  case  instanced.  The  timber  appropriated  is  in  each  case  compara- 
tively unimportant."  Wetherbee  v.  Green,  23  Mich.  319,  320,  7  Am. 
Rep.  653. 

Wetherbee  v.  Green,  22  Mich.  311,  7  Am.  Rep.  653,  was  an  action 
of  replevin  by  the  appellee  against  the  appellant  to  recover  a  quantity 
of  hoops  made  out  of  the  timber  of  the  former  by  the  latter,  in  good 
faith,  under  what  he  supposed  to  be  good  authority.  The  timber  in  the 
tree  was  worth  only  $25,  and  the  hoops  made  out  of  it  were  worth 
$700.  The  court  held  that  the  owner  could  not  recover  the  hoops,  but 
was  entitled  to  the  damages  sustained  by  reason  of  the  unintentional 
trespass.  This  decision  was  based  upon  the  reason  that  the  hoops 
were  made  in  good  faith,  and  upon  the  fact  that  the  value  of  the  tim- 
ber, as  compared  with  the  value  of  the  labor  expended  in  making  them, 
was  insignificant. 

In  Mining  Co.  v.  Hertin,  37  Mich.  332,  26  Am.  Rep.  520,  the  par- 
ties were  owners  of  adjoining  tracts  of  timbered  land.  In  the  winter 
of  1873-74  the  Hertins,  in  consequence  of  a  mistake  respecting  the 
boundaries,  went  upon  the  lands  of  the  mining  company,  and  cut  a 
quantity  of  cord  wood,  which  they  hauled  and  piled  on  the  bank  of 
Portage  Lake.  The  next  spring  the  mining  company  took  possession 
of  the  wood,  and  converted  it  to  their  own  purposes.  The  wood  on 
the  bank  of  the  lake  was  worth  $2,871/2  per  cord,  and  the  value  of  the 
labor  expended  by  the  Hertins  in  cutting  and  putting  it  there  was 
$1,873/2  psr  cord — nearly  doubling  the  value  of  the  timber.  After  the 
mining  company  had  taken  possession  of  the  wood,  the  Hertins 
brought  an  action  against  the  mining  company  for  the  value  of  their 
labor  expended  in  converting  the  timber  into  cord  wood,  and  placing 
it  upon  the  bank  of  the  lake.  The  court  held  that  they  were  not  en-- 
titled  to  recover.  Chief  Justice  Cooley  (the  same  judge  who  delivered 
the  opinion  in  Wetherbee  v.  Green,  supra),  in  delivering -the  opinion  of 
the  court,  said: 

"It  is  on  all  hands  conceded  that  where  the  appropriation  of  the 
property  of  another  was  accidental,  or  through  mistake  of  fact,  and 
labor  has  in  good  faith  been  expended  upon  it,  which  destroys  its 
identity,  or  converts  it  into  something  substantially  different,  and  the 


384  COMPENSATORY  DAMAGES.  (Part  5 

value  of  the  original  article  is  insignificant,  as  compared  with  the  new 
product,  the  title  to  the  property  in  its  converted  form  must  be  held 
to  pass  to  the  person  by  whose  labor,  in  good  faith,  the  change  has 
been  wrought;  the  original  owner  being  permitted,  as  his  remedy,  to 
recover  the  vali»e  of  the  article  as  it  was  before  the  conversion.  This 
is  a  thoroughly  equitable  doctrine,  and  its  aim  is  to  so  adjust  the  rights 
of  the  parties  as  to  save  both,  if  possible,  or  as  nearly  as  possible,  from 
loss.  But,  where  the  identity  of  the  original  article  is  susceptible  of  be- 
ing traced,  the  idea  of  a  change  in  the  property  is  never  admitted,  un- 
less the  value  of  that  which  has  been  expended  upon  it  is  sufficiently 
great,  as  compared  with  the  original  value,  to  render  the  injustice  of 
permitting  its  appropriation  by  the  original  owners  so  gross  and  pal- 
pable as  to  be  apparent  at  the  first  blush.  Perhaps  no  case  has  gone 
further  than  Wetherbee  v.  Green,  22  Mich.  311,  7  Am.  Rep.  653,  in 
which  it  was  held  that  one  who,  by  unintentional  trespass,  had  taken 
from  the  land  of  another  young  trees  of  the  value  of  $25,  and  con- 
verted them  into  hoops  worth  $700,  had  thereby  made  them  his  own, 
though  the  identity  of  trees  and  hoops  was  perfectly  capable  of  being 
traced  and  established. 

"But  there  is  no  such  disparity  in  value  between  the  standing  trees 
and  the  cord  wood  in  this  case  as  was  found  to  exist  between  the  trees 
and  the  hoops  in  Wetherbee  v.  Green.  The  trees  were  not  only  sus- 
ceptible of  being  traced  and  identified  in  the  wood,  but  the  difference 
in  value  between  the  two  is  not  so  great  but  that  it  is  conceivable  the 
owner  may  have  preferred  the  trees  standing  to  the  wood  cut.  The 
cord  wood  has  a  higher  market  value,  but  the  owner  may  have  chosen 
not  to  cut  it,  expecting  to  make  some  other  use  of  the  trees  than  for 
fuel,  or  anticipating  a  considerable  rise  in  value  if  they  were  allowed 
to  grow.  It  cannot  be  assumed,  as  a  rule,  that  a  man  prefers  his  trees 
cut  into  cord  wood,  rather  than  left  standing;  and  if  his  right  to 
leave  them  uncut  is  interfered  with,  even  by  mistake,  it  is  manifestly 
just  that  the  consequences  should  fall  upon  the  person  committing  the 
mistake,  and  not  upon  him.  Nothing  could  more  encourage  careless- 
ness than  the  acceptance  of  the  principle  that  one  who  by  mistake  per- 
forms labor  upon  the  property  of  another  should  lose  nothing  by  his 
error,  but  should  have  a  claim  upon  the  owner  for  remuneration.  Why 
should  one  be  vigilant  and  careful  of  the  rights  of  others,  if  such  were 
the  law?  Whether  mistake  or  not  is  all  the  same  to  him,  for  in  either 
case  he  has  employment,  and  receives  his  remuneration,  while  the  in- 
conveniences, if  any,  are  left  to  rest  with  the  innocent  owner.  Such 
a  doctrine  offers  a  premium  to  heedlessness  and  blunders,  and  a  tempta- 
tion by  false  evidence  to  give  an  intentional  trespass  the  appearance  of 
an  innocent  mistake."  See  Grant  v.  Smith,  26  Mich.  201;  Gates  v. 
Boom  Co.,  70  Mich.  309,  38  N.  W.  245. 

/'  Prof.  Schouler,  in  his  work  on  Personal  Property,  sums  up  the  mod- 
ern doctrine  upon  this  subject  as  follows:  "Where  the  trespass  was 
not  willful,  but  accidental,  as  through  some  mistake  of  fact,  and  the 


Ch.  1)  ADDITION  OF  VALUE  BY  WRONGDOER.  385 

materials  taken  can  still  be  identified,  and  the  labor  and  materials  of 
the  trespasser  are  not  shown  to  have  gone  further  than  the  appro- 
priated materials  towards  producing  the  present  valuable  chattel,  the 
owner  of  the  materials  is  still  entitled  to  the  chattel.  But  where  no 
element  of  willfulness  or  intentional  wrong  whatever  appears  on  the 
part  of  him  who  applied  another's  materials,  and  the  identity  of  those 
materials  has  finally  disappeared  in  the  new  product,  or  where  it  can 
be  shown  that  his  own  labor  and  materials  contributed  essentially  much 
more  to  the  value  of  the  present  chattel  than  those  materials  which  he 
took  without  intending  a  wrong,  he  shall  keep  the  chattel  as  his  own ; 
making,  however,  due  compensation  to  the  owner  of  the  materials  for 
what  he  took/'    2  Schouler,  Pers.  Prop.  (2d  Ed.)  §  37. 

On  account  of  the  conflict  of  opinion  upon  this  subject,  and  the  fact 
that  this  court  is  free  from  the  restraints  of  precedents  in  respect  there- 
to, we  are  at  liberty  to  select  the  rule  which  is  sustained  by  authority, 
and  is  in  our  opinion  the  wisest  and  most  just.  'The  rule  as  stated  by 
Judge  Cooley  comes  nearer  approaching  this  standard.  The  increased 
value  of  the  original  materials  furnishes  no  guide  by  which  the  merit 
of  the  laborer  who  has  given  them  their  new  form  can  be  determined. 
The  increased  value  is  the  joint  result  of  the  original  material,  and  the 
work  and  materials  expended  by  the  laborer  in  creating  the  new  form. 
They  may  be  equal,  or  the  former  may  exceed  the  latter  in  value;  and 
the  increased  value  may  exceed  the  aggregate  value  of  the  original 
materials  and  that  expended  upon  them.  Independent  causes  may  con- 
tribute to  the  increased  value.  For  instance,  transportation  to  a  market 
where  the  original  material  is  scarce  and  in  great  demand  may  greatly 
increase  its  market  value,  or  may  diminish  such  value  by  the  transfer 
to  the  place  where  the  supply  is  greater  and  the  demand  is  less  than 
it  is  in  the  market  from  which  it  was  shipped.  So  it  cannot  be  said 
that  the  transportation  added  the  increased  value.  Other  causes — 
supply  and  demand — affected  the  value.  So  may  labor  change  the 
original  material  into  a  new  form,  and  increase  the  demand  for  it  in 
that  shape,  and  thereby  enhance  its  value.  Why,  then,  should  the  per- 
son who  has  made  the  expenditure  be  entitled  to  the  difference  between 
the  aggregate  value  of  his  expenditure  and  the  original  material  and 
-  the  value  of  the  article  in  its  new  form?  Jle  can  lose  no  more  than 
the  value  of  his  labor  or  other  expenditure.  His  right  to  the  property 
in  its  new  form  should  not,  therefore,  in  any  case,  be  dependent  upon 
its  increased  value,  but  upon  the  relative  values  of  the  original  ma- 
terials and  his  expenditures  upon  the  same ;  and  this  should  be  con- 
sidered only  when  the  identity  of  the  original  article  is  susceptible  of 
being  traced,  and  then  only  when  he  has  acted  in  good  faith,  and  con- 
verted it  into  something  substantially  different,  and  the  value  of  the 
original  article,  as  compared  with  the  value  of  that  expended  upon  it, 
is  so  insignificant  as  "to  render  the  injustice  of  permitting  its  appro- 
priation by  the  original  owner  so  gross  and  palpable  as  to  be  ^apparent 
Gilb.Dam.— 25 


386  COMPENSATORY   DAMAGES.  (Part    5 

at  the  first  blush."  In  addition  to  the  relative  values,  the  injury  in- 
flicted upon  the  owner  by  the  trespasser,  and  the  injustice  of  taking 
from  the  former  his  property,  against  his  will,  at  its  market  value, 
should  be  considered,  and  compared  with  the  hardship  the  latter  may 
suffer  by  the  loss  of  his  labor  and  other  expenditures,  in  determining 
whether  this  appropriation  would  be  such  gross  and  palpable  injus- 
tice as  to  give  the  innocent  trespasser  the  right  to  the  property  in  its 
converted  form,  as  in  Mining  Co.  v.  Hertin,  37  Mich.  332,  26  Am.  Rep. 
520.  In  this  manner  the  rights  of  parties  would  be  more  nearly  pro- 
tected, and  justice  at  the  same  time  administered. 

The  value  of  the  cross-ties  in  controversy  was  12 1/^  cents  a  tie.  The 
value  of  each  in  the  tree  was  two  cents.  The  value  of  the  labor  ex- 
pended upon  them  is  not  shown,  but,  assuming  it  to  be  the  increased 
value  of  lOi^  cents  a  tie,  the  difference  between  it  and  the  value  of  the 
original  material  is  not  so  great  as  to  make  the  value  of  the  latter,  as 
compared  with  that  of  the  former,  insignificant,  and  to  make  the  ap- 
propriation of  the  cross-ties  by  the  original  owner  to  his  own  use, 
without  compensation,  appear,  under  the  circumstances,  gross  injus- 
tice, at  the  first  blush.  The  disparity  is  not  so  great  as  it  was  in  Weth- 
erbee  v.  Green,  supra,  in  which  trees  of  the  value  of  $25  were  cut  and 
taken  by  one  from  the  land  of  another,  and  converted  into  hoops  of 
the  value  of  $700,  which  was  28  times  the  value  of  the  trees,  while  the 
cross-ties  in  this  case  were  about  six  times ;  and  yet  the  Supreme 
Court  of  Michigan,  in  Mining  Co.  v.  Hertin,  supra,  said  that  "perhaps 
no  case  has  gone  further  than  Wetherbee  v.  Green." 

In  considering  the  justice  of  permitting  the  appellant  to  appropriate 
the  cross-ties  to  his  own  use,  the  invasion  of  his  rights  and  the  injury 
done  to  him  by  appellee  should  not  be  overlooked.  The  trees  belonged 
to  him.  They  were  standing  upon  his  land,  and  he  had  the  right  to 
hold  them  as  they  were.  No  one  had  the  right  to  take  them  from  him, 
convert  them  into  ties,  and  force  him  to  accept  their  value  at  the  time 
of  the  conversion.  He  may  have  preferred  to  have  them  stand,  and, 
if  left  standing  for  a  few  years,  they  might  yield  him  a  great  profit; 
and  the  enhancement  of  their  value  by  the  labor  of  appellee  might  be 
a  poor  compensation  for  the  wrong  done.  But,  whether  he  wished  to 
sell  or  not,  it  would  be  gross  injustice  to  permit  appellee  to  force  him 
to  sell.  He  is  entitled  to  the  protection  of  the  laws.  *  *  *  \Ye 
think  it  would  be  lawful  and  right  to  allow  appellant  to  recover  the 
cross-ties,  and  to  impose  upon  the  appellee  the  consequences  of  his  own 
carelessness. 

But  appellant  has  not  obtained  possession  of  the  cross-ties.  In  the 
event  he  cannot  do  so,  he  is  entitled  to  the  value  of  the  property  he 
has  lost.  How  is  this  value  to  be  estimated?  This  question  is  not 
beset  with  the  difficulties  which  attend  the  right  of  recaption.  When 
the  appellant  sued  for  the  possession  of  the  cross-ties,  he  was  entitled 
to  their  possession,  unless  he  had  lost  his  property  by  the  wrongfiil 
act  of  another.    If  entitled  to  retake  it  in  its  new  form,  it  must  be  tak- 


Ch.  1)  ADDITION    OF    VALUE    BY    WUONGDOER.  387 


^r.:^.-'-^-^;^' 


en  as  he  found  it,  though  enhanced  in  value  by  the  labor  of  appellee. 
The  ties  cannot  be  restored  to  their  original  form.  The  appellee  can- 
not force  the  appellant  to  become  a  debtor  to  him  for  the  value  of  his 
labor,  or  demand  compensation  for  his  voluntary  additions  to  the  value 
of  the  trees  converted  into  ties,  without  the  assent  of  the  appellant. 
He  cannot  impose  any  conditions  upon  the  right  to  retake  them.  The 
question  therefore  being  whether  the  appellee  shall  lose  his  labor,  or 
the  appellant  lose  the  right  to  take  his  property,  the  law  decides  in  favor 
of  the  latter.  But  in  determining  the  compensation  the  appellant  shall 
receive  as  the  value  of  his  property  which  has  been  wrongfully  con- 
verted this  difficulty  does  not  arise.  The  value  of  the  property  of  the 
owner,  which  has  been  converted,  can  be  ascertained  and  fixed  without 
including  therein  the  labor  expended  upon  it.  Hence  the  law  protects 
the  unintentional  trespasser  in  such  cases  by  limiting  the  right  of  the 
owner  to  recover.     *     *     * 

As  to  the  extent  of  this  limitation  the  authorities  are  not  agreed. 
But  we  think  that  inasmuch  as  this  is  an  exception  to  the  general  rule, 
made  for  the  purpose  of  protecting  the  unintentional  trespasser,  it 
should  be  allowed  to  prevail  only  to  the  extent  it  is  necessary  to  give 
protection,  and  that  the  owner,  in  actions  for  the  possession  of  personal 
property  in  the  new  form  into  which  it  has  been  converted  inadvertent- 
ly, under  a  bona  fide  but  mistaken  belief  of  right,  "in  case  a  delivery 
cannot  be  had,"  is  entitled  to  recover  the  value  of  the  property  in  its 
new  form,  less  the  labor  and  material  expended  in  transforming  it, 
provided  the  expenditures  do  not  exceed  the  increase  in  value  which 
was  added  to  the  transformation,  in  which  event  he  should  recover  the 
value  of  the  property  in  its  new  form,  less  the  increase.  Weymouth  v. 
Railway  Co.,  17  Wis.  550,  84  Am.  Dec.  763. 


.     WHITE  et  al.  v.  YAWKEY. 

(Supreme  Court  of  Alabama,  1896.     108  Ala.  270,  19  South.  3G0.) 

Head,  J."*  The  case  was  tried  in  the  lower  court  upon  the  second 
count  of  the  complaint,  which  was  in  trover,  and  claimed  damages 
"for  the  conversion  of  100  pine  logs  cut  and  taken  away"  from  the 
lands  of  the  plaintiff.  The  material  facts  are  that,  within  a  year  prior 
to  the  commencement  of  the  suit,  one  Jack  Brewer  cut  the  pine  logs 
from  the  timber  lands  belonging  to  the  plaintiff,  and  sold  them  to  the 
defendants  to  be  delivered  on  the  banks  of  Pea  river,  where  he  did 
in  fact  deliver  them;  and  that  neither  he  nor  the  defendants  knew  at 
the  time  the  cutting  was  done  that  trespasses  were  being  committed 
on  the  plaintiff's  property,  this  fact  not  having  been  discovered  until 
a  survey  was  made,  some  time  after  the  acts  complained  of  had  been 

64  Part  of  the  opinion  is  omitted. 


388  COMPENSATORY  DAMAGES.  (Part    5 

performed.  The  defendants  disposed  of  the  logs,  which  were  worth 
four  cents  per  foot,  at  Pea  river.  *  *  *  With  a  view  to  mitigat- 
ing the  damages,  the  defendants  offered  to  prove  the  value  of  the  logs 
prior  to  their  removal  from  the  land,  accompanying  the  offer  with  the 
statement  to  the  court  that  they  expected  to  prove  the  logs  were  worth 
materially  more  after  being  transported  to  and  placed  on  the  banks 
of  Pea  river  than  they  were  before  such  removal.  The  court  re- 
fused to  allow  this  proof  to  be  made,  and  to  the  ruling  an  exception 
was  duly  reserved.  This  presents  the  single  question  of  merit  to  be 
decided  upon  the  appeal. 

It  will  be  observed  from  the  foregoing  statement,  that  the  record 
makes  the  case  of  a  conversion  by  purchasers,  innocent  of  wrongdoing, 
from  an  inadvertent  trespasser,  who,  by  the  expenditure  of  time,  labor, 
and,  doubtless,  money,  had  enhanced  the  value  of  the  pine  logs,  after 
their  severance  from  the  freehold  and  transformation  into  chattels. 
The  effect  of  the  ruling  of  the  circuit  court  was  to  exclude  from  the 
jury  all  evidence  upon  the  subject  of  value,  except  that  confined  and 
limited  to  the  place  of  delivery  to  the  defendants,  and  thereby  to  neces- 
sitate a  verdict  for  the  value  at  that  place,  as  being  the  only  authoriz- 
ed measure  of  damages,  justified  by  the  facts  of  the  case.  *  *  <= 
The  modern  authorities  are  practically  unanimous  in  holding  that  the 
rule  of  just  compensation  for  the  injury  sustained,  which  is  the  ideal 
measure  of  actual  damages,  does  not  require  the  assessment,  against 
an  inadvertent  trespasser,  of  the  accession  to  the  value  of  a  chattel 
which  his  labor  has  produced,  but  that  he  is  entitled  to  an  abatement 
therefor  from  the  enhanced  value.  *  *  *  'pj^g  same  rule  prevails 
when  trover  is  brought  against  the  unintentional  trespasser's  innocent 
vendee,  who  is  treated  as  standing  in  the  shoes  of  his  vendor.     *     *     * 

It  is  no  answer  to  this  to  say  that  the  plaintiff  might  have  brought 
detinue  for  the  logs  wherever  he  might  have  found  them,  short  of  a 
change  of  identity,  and  thereby  have  recovered  them  in  specie  after 
their  value  had  been  enhanced.  In  detinue  the  title  prevails,  and  the 
question  of  damages  is  not  considered.  If  a  party  aggrieved  elects 
to  bring  the  equitable  action  of  trover,  the  assessment  of  damages  may 
be  so  adjusted  as  to  compensate  the  plaintiff  for  his  injury,  without 
paying  him  a  premium,  or  depriving  an  innocent  party  of  that  which 
he  has  in  good  faith  added  to  the  chattel.  Weymouth  v.  Railway  Co., 
17  Wis.  550,  84  Am.  Dec.  763.  The  rule  is  different  if  the  trespass  is 
willful  or  in  bad  faith.     *     *     * 

The  authorities  do  not  agree  upon  the  question  whether,  in  trover 
against  an  inadvertent  trespasser,  or  his  innocent  vendee,  for  severed 
portions  of  the  realty,  the  rule  is  to  allow  the  value  of  the  property  in 
plac-i  as  if  it  had  been  purchased  in  situ  by  the  defendant,  at  the  fair 
market  value  of  the  district — as,  for  instance,  the  value  of  timber 
standing,  or,  for  coal  or  ore  mined,  the  value  in  place — or  whether-  the 
value  to  be  taken  as  the  basis  of  recovery  is  that  of  the  property  con- 
verted immediately  after  severance,  when  it  becomes  a  chattel.     The 


O^A^ 


(-J.J  i^  ADDITION  OF  VALUE  BY  WRONGDOER. 


389 


case  of  Wood  v.  Morewood,  3  Q.  B.  440  (which  is  regarded  as  con- 
flicting with  the  earUer  Enghsh  cases),  is  the  leading  English,  and  For- 
syth V.  Wells,  41  Pa.  291,  80  Am.  Dec.  617,  subsequently  criticised  m 
that  state,  is  one  of  the  leading  American,  cases  supporting  the  rule 
first  stated,  and  they  have  been  frequently  followed.  Many  cases  which 
are  often  cited  in  favor  of  the  same  rule  may  be  distinguished  by  not- 
ing that  they  were  not  actions  of  trover,  or  that  they  arose  in  states 
which  have  abolished  forms  of  action,  or  that  the  decisions  were  made 
in  proceedings  in  equity  where  the  courts  were  not  influenced  by  the 
technical  rules  governing  the  various  common-law  actions.  In  this 
state,  forms  of  action  have  not  been  abolished,  and  parties  must  be 
here  'held  to  the  legitimate  and  logical  consequences  of  the  particular 
action  which  has  been  instituted.  , 

Trover  is  brought  for  the  conversion  of  personal  property,  and  it 
would  seem  incongruous  to  say  that  the  damages  could  be  assessed 
upon  the  principle  adopted  in  actions  of  trespass  quare  clausum  fregit, 
when  the  gravamen  of  the  complaint  is  essentially  different.  Cases  can 
be  easily  perceived  in  which  the  value  of  the  timber  after  severance 
would  very  inadequately  compensate  the  owner  for  the  trespass.  This 
would  be  so  when  the  trees  were  prematurely  cut,  or  were  valuable 
for  shade  or  fruit.  Under  such  circumstances,  he  may  accommodate 
his  selection  of  a  form  of  action  to  the  necessities  of  the  case,  and  bring 
trespass  for  entering  his  land,  and  severing  and  removing  timber  or 
trees,  in  which  case  he  would  recover,  as  actual  damages,  the  diminish- 
ed value  of  the  land,  or,  to  state  it  more  definitely,  the  value  of  the 
trees  standing  and  any  injury  to  the  freehold  by  reason  of  their  re- 
moval.    *     *     * 

When  trover  is  brought,  the  trespass  upon  the  land  is,  so  to  speak, 
waived  or  disregarded ;  and  when  brought  for  the  conversion  of  logs 
or  trees  as  chattels,  under  the  circumstances  of  this  case,  the  true  rule, 
in  our  opinion,  is  the  second  above  stated,  according  to  which  the  value 
immediately  after  severance,  with  interest,  furnishes  the  proper  meas- 
ure of  recovery.     *     *     * 

The  circuit  court  erred  in  rejecting  the  proffered  proof.     *     *     * 


GASKINS  V.  DAVIS. 

(Supreme  Court  of  North  Carolina,  1894.    115  N.  C.  85,  20  S.  E.  188,  25  L.  R. 
A.  813,  44  Am.  St.  Rep.  439.) 

Avery,  J."    The  plaintiff's  complaint  is  in  the  nature  of  a  declara- 
tion for  'trespass  in  the  entry  by  the  defendant  upon  her  land,  after 
being  forbidden,  and  cutting,  carrying  away,  and  converting  to  his 
•own  use  valuable  timber  that  was  growing  thereon,  to  her  damage 
$500.    The  logs,  after  being  severed,  were  transported  to  Newbern  in 

05  Part  of  tbe  opinion  is  omitted. 


390  COMPENSATORY  DAMAGES.  (Part   5 

two  lots,  one  of  which  lots  was  seized  by  plaintiff  after  reaching  that 
city,  where  it  was  much  more  valuable  than  at  the  stump,  and  was  sold 
by  her  for  the  sum  of  $112.  The  other  lot  was  converted  into  boards 
and  sold  by  the  defendant.  The  defendant,  for  a  second  defense,  sets 
up  by  way  of  counterclaim  the  seizure  of  the  logs  by  the  plain- 
tiff.    *     *     * 

The  well-established  rule  is  that  in  such  cases  the  injured  party  is 
entitled  to  recover  of  the  trespasser  the  value  of  the  timber  where  it 
was  first  severed  from  the  land  and  became  a  chattel^  (Bennett  v. 
Thompson,  35  N.  C.  146),  together  with  adequate  damage  for  any  in- 
jury done  to  the  land  in  removing  it  therefrom.-,  As  long  as  the  timber 
taken  was  not  changed  into  a  different  species,  as  by  sawing  into  boards, 
the  owner  of  the  land  retained  her  right  of  property  in  the  specific 
logs  as  fully  as  when  by  severance  it  became  her  chattel,  instead  of 
a  part  of  the  realty  belonging  to  her.  Potter  v.  Mardre,  74  N.  C.  40. 
The  value  of  the  material  taken  indicates  the  extent  of  the  loss,  where 
there  are  no  circumstances  of  aggravation  or  willfulness  shown,  and 
is  the  usual  measure  of  damages.  Where  the  trespasser  has  converted 
the  property  taken  into  a  different  species,  under  the  rule  of  the  civil 
law  which  we  have  adopted,  the  article,  in  its  altered  state,  cannot  be 
recovered,  but  only  damages  for  the  wrongful  taking  and  conversion, 
when  the  change  in  its  form  is  "made  by  one  who  is  acting  in  good 
faith,  and  under  an  honest  belief  that  the  title  was  in  him."     *     *     * 

The  judge  laid  down  correctly  the  rule  as  to  the  damage  that  the 
plaintiff  was  entitled  to  recover  of  the  defendant  for  the  original  tres- 
pass— the  value  of  the  logs  when  severed  at  the  stump,  and  adequate 
•damage  for  injury  done  to  the  land  in  removing  them.  Potter  v.  Mar- 
dre, supra ;  5  Am.  &  Eng.  Enc.  Law,  p.  36 ;  Ross  v.  Scott,  15  Lea 
(Tenn.)  479.  The  character  of  the  logs  had  not  been  changed  by  cut- 
ting and  transporting  to  Newbern,  but  the  value  had  probably  been 
greatly  enhanced.  The  approved  rule,  where  the  plaintiff  is  asking 
damage  for  trespass,  seems  to  be  that  the  owner  is  entitled  to  recover 
the  value  of  the  logs  when  and  where  they  were  severed,  and  without 
abatement  for  the  cost  of  severance.  Coal  Co.  v.  Mc^Millan,  49  Md. 
549,  33  Am.  Rep.  280.  But,  if  he  prefers  to  follow  and  claim  the  tim- 
ber removed,  he  is  entitled  to  do  so,  as  long  as  the  species  remains  un- 
changed. The  plaintiff  was  entitled  to  recover  in  a  claim  and  deliv- 
ery proceeding  the  logs  that  she  seems  to  have  acquired  peaceful  pos- 
session of  without  action.  Was  the  defendant  entitled,  by  way  of  re- 
coupment, to  the  benefit  of  the  enhanced  value  imparted  to  the  prop- 
erty by  transporting  it  to  market?     *     *     * 

It  seems  to  have  been  conceded  that  the  defendant  cut  and  carried 
away  the  logs  under  the  honest  but  mistaken  behef  that  the  land  upon 
which  they  were  growing  was  his  own.  WHiere  a  trespasser  acts  in 
good  faith  under  a  claim  of  right  in  removing  timber,  though  he  may 
not  be  allowed  compensation  for  the  cost  of  converting  the  tree  into  a 
chattel,  may  he  not  recoup,  in  analogy  to  the  equitable  doctrine  of  bet- 


oqi 

Ch    1)  ADDITION    OF    VALUE    BY    WRONGDOER. 

the  benefit  of  the  enhanced  value  imparted  to  'he  lo  =  b^  re, 
the  stump  to  the  Newbern  market  seems  to  have  acted  upon 
that  the  defendant,  by  reason  of  h.s  g°°d  fa.th   was    nm  e^ 
benefit  of  the  improvement  m  value  .mpartecl  by  h'    lab°r    ^^^^_^^^^ 

pense.    In  Ross  v.  Seott,  '"f'^'^^ZV^yZZxhe  honest  but  er- 
had  entered  upon  land  to  mu.Jor      a    a^^^^^  ^^^^^„„_  ,       3 

roneous  belief  that  he  was  me  uwi     ,  ^_ 

held  that  the  plaintiff  might  «=°™r  the  cos^  ofj^he    oal  m 
ject  to  reduction  by  an^alowanceo    pern^nent  n  p  ^^^^  ^^  ^^^_ 

cTded  s:srs-the  rule  t  J  .here  the  action  is  brought  ^or    ama^s 
'°'  '"'l^rhThad  tir  o'th^m    he"  mea:i^e  oTda^r^:  is  the  value 
i    i^ent  to  remova  .  no  ^^^the  -"^he.  t    y    ^^^^  ^ 
Ite-ssment  of  vindictive  damages    there  is  only  one  ex    p^o^^ 
^-i::^^:^  iLtr^ rrpe'^'-rvlUe  for  orna- 

ment,  or  as  shade  trees  j^^  ^^^^tel 

Tt  VipinP-  settled  in  this  state  that  the  ngnt  lo  uie  spc 

ther   th-n^^  it  may  sometimes  subject  a  mistaken  ^^^fP^^^'^        .         . 
11^;:  'and  hild  that^he  t-^ow„erJs  entitled  to  re.-  pos.^^^^^^^^^ 

been  imparted  to  it  by  transportmg  it  to  a  bet^  mark  .or  by  y^,^^ 
provements  in  Hs  cond.t.on  shor  of  an  ^^^^-\f'^^%^^^  ,P,  the 
In  Wcymo,^r  v.  Radroa^^  ,,^  ,. 

court  say.    (In  determinm^  i       l  j        ,5t  hold  that  he  has 

ther  allow  tHe  owner  to  retake  the  property,  or 

rtrei^rnTC^h  elr^fin  Igty  t.  ^^^^^^^^^^^^ 
It  cannot  be  returned  to  its  origmal  ™"d|^^.on^The  aw  therefore 

for  damages,  the  difficulty  °'  -PJ^  "|,f,„te  ^practicable  to  give 


392  COMPENSATORY   DAMAGES.  (Part   5 

ant.  In  the  case  of  recaption  the  law  does  not  allow  it,  because  it  is 
absolute  justice  that  the  original  owner  should  have  the  additional 
value.  But  where  the  wrongdoer  has  by  his  own  act  created  a  state 
of  facts,  when  either  he  or  the  owner  must  lose,  then  the  law  says  the 
wrongdoer  shall  lose."  Isle  Royal  Mining  Co.  v.  Hertin,  26  Am.  Rep. 
529,  note. 

When,  therefore,  the  plaintiff  recaptured  the  one  lot  of  logs  that 
had  been  enhanced  in  value  by  transportation  from  the  stump  to  the 
city  market,  she  but  exercised  the  right  given  her  by  law  to  peacefully 
regain  possession  of  her  own  chattels  wherever  found.  She  was  guilty 
of  no  infringement  of  the  rights  of  the  defendant,  for  which  an  action 
would  lie.  It  is  familiar  learning  that  a  defendant  can  only  maintain 
successfully  a  counterclaim  when  it  is  of  such  a  nature  that  he  could 
recover  upon  it  in  a  separate  suit  brought  against  the  plaintiff.  The 
defendant  could  not  recover,  therefore,  either  in  a  distinct  action  for 
the  taking  of  the  logs,  or  by  way  of  counterclaim.  When  the  plaintiff 
recaptured  the  logs  she  was  guilty  of  no  wrong,  and  the  question  of 
title  to  the  property  so  rightfully  taken  was  eliminated  from  all  possible 
future  controversy.  Her  remedy  by  act  of  the  law  remained  as  to  so 
many  of  the  logs  as  she  had  not  regained  possession  of  by  her  own 
act.  After  she  had  recaptured  one  lot  the  property  in  them  in  their 
altered  state,  and  at  the  new  situs,  revested  in  her,  with  the  absolute 
jus  disponendi,  as  in  the  case  of  her  other  personal  property.     *     *     * 


BOLLES  WOODENWARE  CO.  v.  UNITED  STATES. 

(Supreme  Court  of  United  States,  1882.     106  U.  S.  432,  1   Sup.  Ct.  398,  27 

L.  Ed.  230.) 

Indians  knowingly  and  wrongfully  cut  timber  from  the  public  lands, 
known  as  the  "Oneida  Reservation,"  in  Wisconsin,  and,  after  carrying 
it  some  distance,  sold  it  to  the  defendant  company,  which  was  not 
chargeable  with  any  intentional  wrong  or  bad  faith.  The  timber,  when 
felled,  was  worth  25  cents  per  cord.  The  defendant  paid  for  it  $3.50 
per  cord,  and  it  had  purchased  242  cords.-  Judgment  was  rendered  for 
the  government  at  the  rate  of  $3.50  per  cord. 

Miller,  J.**  *  *  *  f^e  doctrine  of  the  English  courts  on  this 
subject  is  probably  as  well  stated  by  Lord  Hatherly  in  the  House  of 
Lords,  in  the  case  of  Livingston  v.  Coal  Co.,  L.  R.  5  App.  Cas.  33,  as 
anywhere  else.  He  said:  "There  is  no  doubt  that  if  a  man  furtively, 
and  in  bad  faith,  robs  his  neighbor  of  his  property,  and  because  it  is 
underground  is  probably  for  some  little  time  not  detected,  the  court  of 
equity  in  this  country  will  struggle,  or  I  would  rather  say,  will  assert 
its  authority  to  punish  the  fraud  by  fixing  the  person  with  the  value 
of  the  whole  of  the  property  which  he  has  so  furtively  taken,  and  mak- 
es Part  of  the  opinion  is  omitted. 


Ch.  1)  ADDITION    OF    VALL'E    BY    WRONGDOER.  393 

ine  him  no  allowance  in  respect  of  what  he  has  so  done  as  would  have 
been  justly  made  to  him  if  the  parties  had  been  working  by  agree- 
ment '^  But  "when  once  we  arrive  at  the  fact  that  an  inadvertence  has 
been 'the  cause  of  the  misfortune,  then  the  simple  course  is  to  make 
every  just  allowance  for  outlay  on  the  part  of  the  person  who  has  so 
acquired  the  property,  and  to  give  back  to  the  ovvmer,  so  far  as  is 
possible  under  the  circumstances  of  the  case,  the  full  value  of  that 
which  cannot  be  restored  to  him  in  specie." 

There  seems  to  us  to  be  no  doubt  that  in  the  case  of  a  willful    res- 
pass  the  rule  as  stated  above  is  the  law  of  damages  both  in  Eng  and 
and  in  this  country,  though  in  some  of  the  state  courts  the  milder 
rule  has  been  applied  even  to  this  class  of  cases.     Such  are  some  that 
are  cited  from  Wisconsin.     Single  v.  Schneider,  24  Wis^299 ;   Wey- 
mouth V.  Railroad  Co.,  17  Wis.  567,  84  Am.  Dec.  763. C  On  the  othe 
hand    the  weight  of  authority  in  this  country  as  well  as  in  England 
favors  the   doctrine  that  where  the  trespass   is   the  result  of  inad- 
vertence or  mistake,  and  the  wrong  was  not  intentional,  the  value 
of  the  property  when  first  taken  must  govern,  or  if  the  conversion 
sued  for  was  after  value  had  been  added  to  it  by  the  work  of  the 
defendant,  he  should  be  credited  with  this  addition  )  Wmchester  v. 
Craig,  33  Mich.  205,  contains  a  full  examination  of  the  authorities 
on  th;  point.     Heard  v.  James,  49  Miss.  236;    Baker  v.  Wheeler    8 
Wend    (N    Y.)  505,  24  Am.  Dec.  66;    Baldwin  v.  Porter,  12  Conn. 
484     "while   these   principles   are   sufficient  to   enable   us    to   fix   a 
measure  of  damages  in  both  classes  of  torts  where  the  ongma    tres 
passer  is  defendant,  there  remains  a  third  class  where  a  purchaser 
from  him  is  sued,  as  in  this  case,  for  the  conversion  of  the  property 
to  his  own  use.    In  such  case,  if  the  first  taker  of  the  property  were 
guilty  of  no  willful  wrong,  the  rule  can  in  no  case  be  more  strmgent 
against  the  defendant  who  purchased  of  him  than  against  his  vendor. 
But  the  case  before  us  is  one  where,  by  reason  of  the  wilful  wrong 
o^  the  party  who  committed  the  trespass,  he  was  liable  under  the  rule 
we  have  supposed  to  be  established,  for  the  value  of  the  timber  at 
Denere  the  moment  before  he  sold  it,  and  the  question  to  be  decided  is 
whether  the  defendant  who  purchased  it  then  with  no  notice  that  the 
property  belonged  to  the  United  States,  and  with  no  intention  to  do 
wrong,  must  respond  by  the  same  rule  of  damages  as  his  vendor  should 
if  he  had  been  sued.    It  seems  to  us  that  he  must.     The  timber  at  all 
stages  of  the  conversion  was  the  property  of  plaintiff.     Its  purcliase 
by  defendant  did  not  divest  the  title  nor  the  right  of  possession.    The 
recovery  of  any  sum  whatever  is  based  upon  that  proposition.     This 
ridit,  at  the  moment  preceding  the  purchase  by  defendant  at  Dcpcre 
was  perfect,  with  no  right  in  any  one  to  set  up  a  claim  for  work  and 
labor  bestowed  on  it  by  the  wrongdoer.     It  is  also  plain  that  by  pur- 
chase from  the  wrongdoer  defendant  did  not  acquire  any  better  title 
to  the  property  than  his  vendor  had.    It  is  not  a  case  where  an  mnocen 
purchaser  can  defend  himself  under  that  plea.     If  it  were,  he  would 


2Jf^i 


394  COMPENSATORY  DAMAGES.  (Part 


be  liable  to  no  damages  at  all,  and  no  recovery  could  be  had.  On  the 
contrary,  it  is  a  case  to  which  the  doctrine  of  caveat  emptor  applies, 
and  hence  the  right  of  recovery  in  plaintiff.  On  what  ground,  then, 
can  it  be  maintained  that  the  right  to  recover  against  him  should  not 
just  what  it  was  against  his  vendor  the  moment  before  he  interfered 
and  acquired  possession?  If  the  case  were  one  which  concerned  addi- 
tional value  placed  upon  the  property  by  the  work  or  labor  of  the  de- 
fendant after  he  had  purchased,  the  same  rule  might  be  applied  as  in 
case  of  the  inadvertent  trespasser.  But  here  he  has  added  nothing  to 
its  value.  He  acquired  possession  of  property  of  the  United  States 
at  Depere,  which,  at  that  place,  and  in  its  then  condition,  is  worth  $850, 
and  he  wants  to  satisfy  the  claim  of  the  government  by  the  payment 
of  $60.  He  founds  his  right  to  do  this,  not  on  the  ground  that  any- 
thing he  has  added  to  the  property  has  increased  its  value  by  the 
amount  of  the  difference  between  these  two  sums,  but  on  the  proposi- 
tion that  in  purchasing  the  property,  he  purchased  of  the  wrongdoer 
a  right  to  deduct  what  the  labor  of  the  latter  had  added  to  its  value. 

H,  as  in  the  case  of  an  unintentional  trespasser,  such  right  existed, 
of  course  defendant  would  have  bought  it  and  stood  in  his  shoes ;  but, 
as  in  the  present  case,  of  an  intentional  trespasser,  who  had  no  such 
right  to  sell,  the  defendant  could  purchase  none.     *     *     *  «7 


11.  Reduction  of  Original,  Loss. 
MURPHY  V.  CITY  OF  FOND  DU  LAC. 

(Supreme  Court  of  Wisconsin,  1S68.     23  Wis.  365,  99  Am.  Dec.  181.) 

Paine,  J.®*  The  instruction  that  although  placing  the  dirt  on  the 
J,_  plaintiff's  lot  may  have  improved  its  value,  she  would  be  entitled  "to 
recover  as  damages  what  it  would  cost  to  remove  the  same,"  was  er- 
roneous. The  fact  that  a  trespass  may  have  benefited  the  property  in- 
vaded cannot  constitute  a  complete  defense.  (The  party  is  always  en- 
titled to  nominal  damages,  for  the  vindication  and  protection  of  his 
right.    But  beyond  this,  except  in  cases  where  exemplary  damages  may 

6  7  See,  also,  the  following  important  cases:  Wetherbee  v.  Green,  22  Mich. 
311,  7  Am.  Rep.  653  (1871) :  Winchester  v.  Crai?.  33  Mich.  207  (1876) ;  Tattle 
V.  White.  46  Mich.  487,  9  N.  W.  528,  41  Am.  Rep.  175  (1881) ;  Weymouth  v. 
C.  &  N.  W.  R.  R.,  17  Wis.  567.  84  Am.  Dec.  763  (1863) ;  Single  v.  Schneider, 
24  Wis.  299  (1869)  ;  30  Wis.  570  (1872) ;  I.  &  St.  L.  R.  &  C.  Ck>.  v.  Ogle.  82 
111.  627,  25  Am.  Rep.  342  (1876) ;  Foote  v.  Merrill,  54  N.  H.  490,  20  Am.  Rep. 
151  (1874).  In  Silsbury  v.  McCoon,  3  N.  Y.  379,  53  Am.  Dec.  307  (1850),  is  to 
be  found  an  exhaustive  discussion  of  the  question  when  title  passes  to  the 
converter  by  change  in  the  original  form  and  substance  of  the  property  con- 
verted. See,  also,  article  in  16  Harv.  Law  Rev.  589,  and  Abbott's  Cases  on 
Personal  Property. 

38  Part  of  the  opinion  is  omitted. 


uv^^    1)    '^^^^^-^■'""^aEDUCTION   O^   ORIGINAL   LOSS._  _       _^^  fcvjf^ 

be  given,' he  iTconfined  to  his  actual  damages.  And  this  being  so,  the  e. 
incorrectness  of  this  instruction  is  apparent/  It  assumes  that  the  jury  \  \Jl4.  X^ 
might  be  satisfied  from  the  evidence  that  the  placing  of  the  dirt  on  the  .t^^j^;Jl  L, 
lot  was  really  a  benefit  to  it,  and  increased  its  value,  yet  be  required  to  (-^^-.^^.^.^ 
give  the  plaintiff  as  damages  what  it  would  cost  to  remove  it.  Suppose  ^  ^^^^^ 
a  trespasser  fills  up  a  water  lot,  which,  without  being  filled,  is  useless.  -^ 
Could  the  owner  recover  the  cost  of  removing  the  dirt,  as  damages  ^^^  J~■'7^r  £ 
the  trespass,  and  at  the  same  time  leave  it  on  the  lot  and  enjoy  the  bene-'^>>^^  t^i^  - 
fit  of  it?  Suppose  the  trespasser  should  grade  a  lot  which  was  previous-  tXU,y^>r^Tv 
ly  inaccessible,  and  greatly  increase  its  value  by  the  grading.  Could  y^u^A^^^^ 
the  owner  take  the  advantage,  and  yet  recover  the  cost  of  replacing  y^^.  a^^jj^ 
the  dirt  in  its  former  position?  These  illustrations  seem  sufficient  to  J»^^^^^^^ 
show  that  the  rule  given  to  the  jury  cannot  be  the  proper  rule  of  dam-  Ji-^J^ 

ages.  -+- 

^Undoubtedly  the  plaintiff  would  have  been  entitled  to  an  instruction  ^^^'"^ 
that  in  determining  whether  the  lot  was  benefited  or  not,  the  jury  ^■J^^'^^**^*^ 
should  consider  the  uses  and  purposes  to  which  she  intended  to  devote  v\^j^  ^ 
it."^,  But,  in  the  absence  of  any  thing  to  the  contrary,  it  is  to  be  pre- taJcu^  x;^ 
sumed  that  they  were  properly  instructed  on  this  point,  and  gave  to  /Xi^^iU^^ 
those  circumstances  proper  consideration.  And  although,^  after  doing  ..^^^C:,^. 
so,  they  should  come  to  the  conclusion  that  the  act  complained  of  real-  Jij,,^,^_^_, 
ly  caused  no  damage  whatever,  but  on  the  contrary  was  a  benefit  to  the 
plaintiff,  they  were  required  to  give  her  arbitrarily  as  damages  what 
it  would  cost  her  to  remove  the  dirt.     *     *     *  ^'^ 


EDMONDSON  v.  NUTTALL. 
(Court  of  Common  Pleas,  1864.     17  C.  B.  [N.  S.]  279.) 

In  July,  ISGO,  the  plaintiff  agreed  with  the  defendant  for  standing 
and  power  for  twelve  looms  in  the  defendant's  mill,  for  which  he  was 
to  pay  9%d.  per  week  for  each  loom.  See  Hancock  v.  Austin,  14  C. 
B.  (N.  S.)  634,  where  it  was  held  that  these  weekly  payments  could 
not  be  distrained  for  as  "rent."  After  the  looms  had  been  at  work  for 
about  two  years,  the  plaintiff  being  in  arrear  with  his  weekly  payments, 
and  being  unable  to  pay,  it  was  agreed  that  the  defendant  should  take 
tive  of  the  looms  in  satisfaction.  The  plaintiff  becoming  again  in  ar- 
rear for  the  standing  of  his  remaining  looms,  the  defendant  sued  him 
in  the  county  court,  and  on  Friday  the  29th  of  January,  1864,  obtained 
judgment  against  him  for  £28.  debt,  and  ill.  15s.  costs;  and  the  judge 
made  an  order  on  the  plaintiff  to  pay  these  sums  on  the  following 

Monday. 

On  Saturday,  the  30th,  the  plaintiff  went  to  the  mill  for  the  purpose 
-of  removing  his  looms.    The  defendant  did  not  then  refuse  to  allow 

69  Accord:  Luther  v.  Winnisimmct  Co.,  9  Ciish.  (^I-^ss)  171  (ISr.l)^  Mayo 
■V.  Springfield,  138  Mass.  70  (IS&i) ;   Jewett  v.  Whitney,  43  Me.  -4-  (lSo<). 


396  COMPENSATORY   DAMAGES.  (Part    5 

him  to  take  them  away,  but  desired  him  to  come  on  the  following  Mon- 
day. On  the  Monday,  the  plaintiff  made  a  formal  demand  for  the 
looms,  and  the  defendant  said  he  could  not  have  made  them  then,  as 
he  (the  defendant)  was  going  out;  and  on  Tuesday  the  looms  were 
seized  (and  subsequently  sold  for  i24.  17s.)  under  an  execution  from 
the  county  court  at  the  defendant's  suit.  The  writ  in  this  action  was 
issued  on  the  same  day. 

The  jury  returned  a  verdict  for  the  plaintiff  on  the  trover  count, 
damages  i/4d. ;  and  they  found  the  value  of  the  looms  to  be  £35. 

The  learned  judge  thereupon  reserved  leave  to  the  plaintiff  to  move 
to  increase  the  damages  to  £35.,  if  the  court  should  be  of  opinion  that 
he  ought  to  have  directed  the  jury  to  find  for  the  value  of  the  looms 
seized — neither  party  to  appeal  without  the  leave  of  the  court.''" 

WiLLES,  J.''^  I  am  of  the  same  opinion.  The  measure  of  damages 
for  the  conversion  of  goods  is  prima  facie  their  value.  The  direction, 
therefore,  of  my  Brother  Blackburn  to  the  jury  in  this  case  was  wrong, 
unless  there  were  circumstances  to  make  some  other  principle  appli- 
cable. Such  circumstances  may  exist  either  where  the  plaintiff  has 
only  a  limited  interest  in  the  goods  at  the  time  of  the  conversion,  or 
where  the  defendant  has  a  lien  upon  them,  or,  as  in  Brierly  v.  Kendall, 
17  Q.  B.  937,  where  the  plaintiff  had  a  defeasible  right  to  the  posses- 
sion of  them.  There  is  nothing  to  make  this  case  an  exception  from 
the  general  rule,  that  the  plaintiff  is  entitled  to  recover  all  he  has  lost 
by  the  defendant's  wrongful  act.  Then,  there  is  the  case  in  which 
the  goods  wrongfully  seized  have  been  afterwards  returned.  The  cases 
of  Fouldes  V.  Willoughby,  8  M.  &  W.  540,  and  Harvey  v.  Pocock,  11 
M.  &  W.  740,  afford  a  familiar  illustration  of  the  rule.  The  circum- 
stances I  have  referred  to  have  from  very  early  times  been  considered 
admissible  in  mitigation  of  damages,  because  the  plaintiff  has  had  part 
satisfaction  for  the  wrong.  If  the  goods  have  been  restored,  and  the 
plaintiff  has  consented  to  take  them  back  in  discharge  of  the  claim,  that 
might  perhaps  be  pleaded  by  way  of  accord  and  satisfaction :  if  not,  it 
would  go  in  reduction  of  the  amount  of  damages  to  which  the  plain- 
tiff would  be  entitled  for  the  wrongful  conversion.  There  is  also  an- 
other case  in  which  the  mitigation  of  damages  is  allowed  upon  a  very 
peculiar  ground, — the  case  of  one  who,  as  executor  de  son  tort,  has  dealt 
with  the  goods  of  the  deceased  in  a  due  course  of  administration,  and 
relies  on  that  as  an  answer  to  an  action  brought  against  him  by  the 
real  executor  appointed  under  the  will.  There,  the  character  of  the 
act  of  wrong  is  determined  at  the  time  it  is  done.  The  law,  however, 
regards  it  with  so  much  favor,  that,  if  the  real  executor  would  have 
done  the  same,  no  recovery  is  allowed  against  the  executor  de  son  tort 
in  respect  of  damages  for  that  part  of  the  estate  which  has  been  so 
applied.  In  all  these  cases,  the  damages  are  allowed  to  be  mitigated, 
either  in  respect  of  the  interest  of  the  plaintiff  in  the  goods  being  less, 

70  The  statement  of  the  case  is  abridged  from  that  of  the  official  report. 

71  Part  of  the  opinion  is  omitted. 


<v. 


Ch.  1)  REDUCTION    OF    ORIGINAL    LOSS.  397 

or  of  his  having  already  received  a  partial  satisfaction  of  the  damages, 
or  of  the  act  being  an  act  having  a  rightful  character  in  respect  of 
the  persons  towards  whom  it  is  done  and  in  whose  favor  it  operates 
at  the  time.  But  that  principle  cannot  apply  here,  where  the  plaintiff 
had  an  unqualified  right  at  the  time  to  do  as  he  liked  with  the  goods, 
and  the  act  of  the  defendant  was  wrongful  and  without  any  justifica- 
tion. I  cannot  help  thinking  that  we  should  be  violating  the  rule  of 
law  which  prohibits  a  man  from  taking  advantage  of  his  own  wrong, 
if  we  were  to  hold  that  the  defendant's  execution  was  to  have  a  great- 
er advantage  or  to  be  more  beneficial  to  him  by  reason  of  his  wrongful 
act  in  seizing  and  detaining  the  plaintiff's  goods  for  the  purpose  of 
making  them  amenable  thereto.  There  clearly  was  nothing  like  a  re- 
delivery of  the  goods  to  the  plaintiff  here.  ♦  *  * 
Verdict  for  plaintiff  for  £35. 


CARPENTER  v.  DRESSER. 

(Supreme  Judicial  Court  of  jNIaine,  1S81.     72  Me.  377,  39  Am.  Rep.  3-37.) 

Pkters,  J.'^^  a  deputy  sheriff  wrongfully  attached  the  plaintiff's 
goods,  dispossessing  the  plaintiff  and  putting  a  keeper  in  charge  of 
his  store.  On  the  next  day,  the  deputy  tendered  to  the  plaintiff  a  re- 
turn of  the  goods  uninjured,  and  in  the  same  condition  as  when  at- 
tached the  day  before.    The  plaintiff  refused  to  receive  them. 

It  was  ruled,  at  the  trial,  that  the  damages  for  the  attachment  and 
taking,  should  be  limited  to  any  injury  necessarily  sustained  by  the 
plaintiff,  by  the  disturbance  of  his  possession  from  the  date  of  the  at- 
tachment to  the  date  of  the  offered  return.  This  was  error.  |  The  gen- 
eral rule  of  damages  applies  in  such  case.  The  plaintiff'  was  entitled 
to  recover  what  the  entire  property  was  worth  when  it  was  attached. 
A  return  of  property  in  mitigation  of  damages  could  not  be  forced  up- 
on the  owner  against  his  consent^ 

When  repossession  and  redelivery  are  spoken  of,  in  the  cases  relied 
upon  by  defendant,  as  going  in  mitigation  of  damages,  it  has  refer- 
ence to  a  return  of  the  property  with  the  consent  of  the  owner.  A  per- 
son cannot  be  said  to  possess,  who  does  not  consent  to  the  possession. 

or  can  there  be  a  redelivery  where  there  is  no  acceptance.  A  mere 
offer  to  deliver  is  not  a  delivery. 

It  has  been  held  that  an  officer,  liable  as  a  trespasser  for  irregularly 
distraining  goods  for  taxes,  may  be  entitled  to  have  the  amount  of  the 
taxes  deducted  from  the  damages  recoverable  against  him,  the  taxes  be- 
ing regarded  as  thus  cancelled  and  paid.  It  is  for  the  owner's  benefit 
in  such  case  that  the  tax  be  regarded  as  paid.  And  other  cases  found- 
ed upon  the  same  or  a  similar  principle  may  be  found.    But  in  all  of 

7  2  Part  of  the  opinion  is  omitted. 


(4?. 


::n?^ 


t-A 


)^^  ^y  JUu\A  b->M  uc^o  -ij^. 


398  COMPENSATORY  DAMAGES.  (Part  5 

them  the  doctrine  is  founded  upon  the  idea,  that  the  deduction  or  miti- 
gation is  allowed  with  the  implied  assent  of  the  owner.  The  case  at 
bar  is  not  such  a  case.     *    *     * 


VJ 


.^AJ• 


KALEY  V.  SHED. 

(Supreme  Judicial   Court  of  Massachusetts,   1845.     10  ^letc.  317.) 

Trespass  for  taking  and  carrying  away  divers  goods  of  the  plaintiff, 
alleged  to  be  of  the  value  of  $115.  At  the  trial  in  the  court  of  com- 
mon pleas,  before  Wells,  C.  J.,  there  was  evidence  tending  to  show  that 
said  goods  were  taken  and  carried  away  from  the  plaintiff's  dwelling 
house  by  the  defendant,  while  acting  as  a  constable,  under  a  search 
warrant;  that  they  were  not  the  goods  mentioned  in  that  warrant; 
that  while  they  were  detained  by  the  defendant,  the  plaintiff  made  a 
demand  on  the  defendant  to  return  them  to  him  at  a  place  designated; 
that  to  this  demand  the  defendant  replied  that  he  would  so  return 
them ;  and  that  while  he  was  apparently  preparing  so  to  do,  the  goods 
were  attached  as  the  property  of  the  plaintiff  by  another  officer,  on  a 
writ  sued  out  against  the  plaintiff  by  O.  A.  Richardson,  and  were  de- 
livered into  the  attaching  officer's  hands. ''^ 

Shaw,  C.  J.''*  This  was  trespass  de  bonis  asportatis  against  the  de- 
fendant, who  is  a  constable,  charging  the  unlawful  taking  of  the  goods 
specified.  It  appears  that  the  goods  were  taken  from  the  plaintiff's 
house,  by  the  defendant,  whilst  in  the  execution  of  a  search  warrant; 
but  not  being  the  goods  specified  in  the  warrant,  the  taking  was  not 
justified  by  it,  and  was  of  course  a  trespass.  It  was,  however,  prob- 
ably not  a  case  for  exemplary  damages,  and  any  claim  to  such  damages 
was  waived. 

It  appears  to  us  that  the  directions  given  by  the  court  were  strictly 
correct  in  point  of  law,  and  qualified  with  great  precision  and  accuracy, 
liad  the  goods  been  in  fact  returned  to  the  plaintiff,  it  would  not  have 
purged  the  trespass,  nor  barred  the  action ;  but  it  would  have  pre- 
vented the  plaintiff,  if  they  had  been  restored  in  as  good  a  plight  as 
when  taken,  from  recovering  the  value  in  damages.  Greenfield  Bank 
V.  Leavitt,  17  Pick.  1,  28  Am.  Dec.  268 ;  1  Rol.  Ab.  5 ;  Moon  v.  Raph- 
ael, 2  Scott,  489,  2  Bing.  N.  R.  310. 

The  instruction  excludes  all  collusion,  between  the  defendant  and 
the  attaching  creditor  or  officer,  to  cause  or  expose  the  goods  to  be  at- 
tached. The  plaintiff  had  demanded  the  goods,  the  defendant  had 
yielded  to  that  demand,  and  whilst  preparing  to  deliver  them,  they  were 
attached  as  the  property  of  the  plaintiff,  and  taken  into  ctistody  by  the 
attaching  officer.  The  property  was  thus  in  the  custody  of  the  law 
by  legal  process,  which  the  defendant  could  not  resist  or  control.    They 

7  3  The  statement  of  the  case  is  abridged  from  that  of  the  official  report. 
7  4  Part  of  the  opinion  is  omitted. 


Ch.  1)  REDUCTION    OF    ORIGINAL    LOSS.        V  "Vvo-v-^  399 

went  to  the  plaintiff's  benefit,  as  much  as  if  they  had  been  returned,  and 
such  application  operates  to  the  same  extent  in  mitigation  of  damagesj)  \^_.^j^\^ 
Squire  v.  Hollenbeck,  9  Pick.  551,  20  Am.  Dec.  506 ;  Pierce  v.  Benjamin,  ^^^-^c^ 
14  Pick.  356,  25  Am.  Dec.  396.    That  they  must  enure  to  his  benefit     y^^^^ 
seems  obvious.     The  plaintiff's  case  assumes  that  the  goods  were  his    ,^6 
property.    They  were  attached  as  his.     If  the  creditor  recovers  |udg-  \ 

ment  and  takes  them  in  execution,  they  go  to  pay  his  debt;  if  not,  they  y>C<^-w.' 
are  laid  up  in  the  custody  of  a  responsible  officer  of  the  law  for  his  ^  tt>ja_  * 
use,  to  be  delivered  on  demand.  In  no  event  could  the  defendant  claim  tX^.j.'ji^  \ 
them.     *     *     *  76     Judgment  for  plaintiff  for  $10.58. 

LAZARUS  V.  ELY. 
(Supreme  Court  of  Errors  of  Connecticut,  1878.    45  Conn.  504.) 

Pardee,  J.^*  Lazarus,  having  for  his  own  accommodation  obtain- 
ed Ely's  endorsement  upon  his  note,  allowed  it  to  go  to  protest ;  be- 
fore paying  it,  Ely  prayed  out  a  writ  in  due  form  of  law  against  him, 
and  thereon  attached  certain  articles  of  personal  property.  Three 
days  later,  Ely,  having  paid  the  note,  abandoned  his  writ  and  suit,  re- 
attached the  same  property  upon  another  writ,  caused  it  to  be  duly 
returned  to  court,  obtained  judgment  thereon,  sold  the  property  on 
execution  for  the  sum  of  $130.50,  and  applied  $118.77  towards  the 
satisfaction  of  his  judgment,  the  remaining  $11.73  having  been  con- 
sumed in  the  expenses  attendant  upon  the  sale. 

Lazarus  brought  this  action  of  trespass  and  trover  against  Ely  for 
the  original  taking,  to  the  city  court  of  Hartford.  That  court  laid 
down  the  following  rule  for  the  assessment  of  damages,  namely,  to 
the  value  of  the  property  when  first  taken  add  the  loss  sustained  by 
Lazarus  by  the  unlawful  detention  until  the  second  attachment;  from 
the  amount  deduct  $118.77  by  which  his  debt  to  Ely  was  reduced,  and 

75  Collins.  J.,  in  Carpenter  et  al.  v.  American  Building  &  Loan  Association, 
54  INIinn.  40.3,  56  N.  W.  95.  40  Am.  St.  Rep.  345  (1893): 

"It  is  well  settlefl,  as  a  general  proposition,  that  when  an  actual  conversion 
of  chattels  has  taken  place  the  owner  is  under  no  obligation  to  receive  them 
hack,  when  tendered  by  the  wrongdoer.  6  Bac.  Abr.  677 ;  9  Bac.  Abr.  559 ; 
4  Amer.  &  Eng.  Enc.  Law,  125.  and  cases  cited.  The  right  of  action  is  com- 
plete and  perfect  when  the  conversion  takes  place,  and  the  object  of  the  action 
is  to  recover  damages,  not  to  regain  possession  of  the  thing  itself.  Even  if 
the  goods  be  returned  by  the  wrongdoer,  and  are  accepted  by  the  owner,  after 
the  action  is  brought,  damages,  nominal  or  actual,  may  be  recovered.  There 
is  a  class  of  cases  when,  in  trespass  or  trover,  the  defendant  may  mitigate 
the  damages  by  a  timely  and  proper  return  of  the  property.  The  rules  which 
govern  in  such  cases  seem  to  be  that  where  the  wrong  lacks  the  element  of 
willfulness — has  been  committed  in  good  faith — the  court.  In  its  discretion, 
may  order  a  return,  upon  timely  application  by  the  defendant,  accompanied  by 
an  offer  to  pay  all  costs,  and  a  showing  that  no  real  injury  will  have  been 
suffered  by  the  plaintiff  when  possession  is  restored.  The  right  of  action 
is  not  defeated  by  the  order  of  the  court,  but  damages  are  mitigated." 

7  6  Part  of  the  opinion  is  omitted. 


400  COMPENSATORY   DAMAGES.  (Part    5 

assess  the  remainder  as  damages.  The  court  found  the  value  of  the 
property  when  taken  to  have  been  $175 ;  from  this  was  deducted  the 
$118.77;  and  judgment  was  rendered  against  Ely  for  the  difference, 
namely,  $56.23.    Ely  filed  a  motion  in  error. 

Jn  Baldwin  v.  Porter,  13  Conn.  473,  this  court  said  as  follows: 
','That  the  value  of  the  property  converted  is  the  general  rule  of  dam- 
ages in  an  action  of  trover  is  admitted.  To  this  rule  there  are  excep- 
tions. And  both  the  rule  and  the  exceptions  proceed  upon  the  prin- 
ciple that  the  plaintiff  ought  to  recover  as  much  damages  as  he  has 
actually  sustained  and  no  more;'  whjch  commonly  is  the  value  of  the 
property,  and  hence  the  general  rule],  No  good  reason,  consistently 
with  moral  principle,  can  be  suggesfed  why  greater  damages  should 
ever  be  recovered  than  have  in  truth  been  sustained,  except  in  those 
cases  where  the  law  permits,  by  way  of  punitive  justice,  the  recovery 
of  vindictive  damages.  Such  damages  are  never  recoverable  in  the 
action  of  trover.  On  this  principle,  if  after  conversion  the  property 
be  restored  before  suit,  damages  for  the  detention  only  can  be  recover- 
ed." In  Curtis  v.  Ward,  20  Conn.  204,  Ward  attached  certain  articles 
of  personal  property  upon  process  legally  issued  against  Curtis,  and 
held  possession  thereof  for  about  two  months,  when  the  attachment 
was  abandoned,  the  endorsement  of  service  erased  from  the  writ,  a 
new  attachment  and  service  made,  and  the  writ  with  the  endorsement 
of  the  last  service  was  returned  to  court.  Ward  obtained  a  judgment 
sold  the  property  upon  execution,  and  applied  the  proceeds  in  satisfac- 
tion  of  his  judgment.  Curtis,  having  brought  an  action  of  trover  for 
the  original  taking,  the  court  thus  stated  the  rule  of  damages : — "The 
plaintiff  insists  that  he  is  entitled  to  recover  the  value  of  the  goods  at 
the  time  of  the  conversion  with  interest.  This  claim  of  the  plaintiff 
would  be  well  founded,  had  he  never,  subsequent  to  the  conversion, 
received  any  benefit  from  the  property.  Such  undoubtedly  is  the  gen- 
eral rule  in  relation  to  damages  in  an  action  of  trover.  *  *  *  But 
to  this  general  rule  there  are  certain  exceptions,  as  well  established, 
says  Morton,  J.,  as  the  rule  itself.  Pierce  v.  Benjamin,  14  Pick. 
(Alass.)  356,  25  Am.  Dec.  396.  Thus,  if  the  property  for  which  the 
action  is  brought  has  been  returned  to  and  received  by  the  plaintiff,  it 
shall  go  in  mitigation  of  damages.  So,  if  goods  are  tortiously  taken, 
and  a  creditor  of  the  owner  afterwards  attaches  them,  and  disposes  of 
them  according  to  law,  and  applies  the  proceeds  in  satisfaction  of  a 
judgment  against  the  owner,  such  proceeding  may  be  shown,  not  as 
a  justification  of  the  taking,  but  in  mitigation  of  damages.  For  it 
would  be  palpably  unjust  for  the  owner  to  receive  the  full  value  of  his 
goods  in  their  application  to  the  payment  of  his  debt,  and  then  after- 
wards recover  that  value  from  another,  who  has  derived  no  substantial 
benefit  from  his  property.  This  rule  is  not  only  in  conformity  with 
justice  but  has  the  sanction  of  authority.  Pierce  v.  Benjamin,  supra. 
The  case  under  consideration  is  not,  in  principle,  distinguishable  from 
those  stated.  CThe  evidence  offered  goes  to  show  that  the  plaintiff  has 


Cli.  1)  REDUCTION    OF    ORIOINAL    LOSS.  *01 

been  once  paid  for  his  goods,  by  a  legal  appropriation  of  them  to  the 
payment  of  a  judgment  against  him;  and  no  principle  of  justice  re- 
quires that  he  should  be  again  paid  for  the  same  property.  The  de- 
fendants ought  to  be  responsible  to  the  extent  of  the  wrong  they  have 
committed  and  no  further."  This  rule  was  reaffirmed  in  Cook  v. 
Loomis,  2G  Conn.  483.     *     *     *  "     Reversed. 


YATES  V.  WHYTE  et  al. 

(Court  of  Common  Pleas,  1838.    4  Bing.  272.) 

The  plaintiff  sued  the  defendant  for  damaging  his  ship  by  collision. 
The  plaintiff  had  already  collected  il72.  on  a  policy  of  marine  insur- 
ance. The  defendants  claimed  that  this  sum  should  be  deducted  from 
the  allowance  for  damages  which  had  been  proved. 

TixDAL,  C.  J.'^^  I  think  this  case  is  decided  in  principle  by  that  of 
Mason  v.  Sainsbury,  3  Doug.  60.  There,  a  party  whose  property  had 
been  burnt  by  a  mob  was  allowed,  after  receiving  the  amount  of  his 
loss  from  an  insurance  office,  to  sue  the  hundred  on  the  statute  1  Geo. 
I.  for  the  benefit  of  the  insurers.  The  only  distinction  between  that 
case  and  the  present  is,  that  there  the  action  for  the  wrong  was  brought 
at  the  instance  of  the  insurance  office,  which  is  not  the  case  here.  But 
it  establishes  that  a  recovery  upon  a  contract  with  the  insurers  is  no 
bar  to  a  claim  for  damages  against  the  wrongdoer.  Lord  Mansfield 
says,  "Though  the  office  paid  w^ithout  suit,  this  must  be  considered  as 
without  prejudice;  and  it  is,  to  all  intents,  as  if  it  had  never  been  paid. 
The  question  comes  to  this:  Can  the  owner  of  the  house,  having  in- 
sured it,  come  against  the  hundred  under  this  act?  Who  is  first  lia- 
ble? If  the  hundred  be  first  liable,  still  it  makes  no  difference.  If  the 
insurers  be  first  liable,  then  payment  by  them  is  a  satisfaction  and  the 

7  7  See,  also,  the  important  cases  of  Fowler  v.  Oilman,  13  Mete.  (Mass.)  2G7 
(lSi7) ;  Pierce  v.  Benjamin.  14  Pick.  (Mass.)  356,  25  Am.  Dec.  30G  (1S33) ; 
Greenfield  Bank  v.  Leavitt.  17  Pick.  (Mass.)  3,  28  Am.  Dec.  268  (1835) ;  Hopple 
V.  nig:bee,  23  N.  J.  Law,  342  n8.j2). 

Earl,  C,  in  Ball  v.  Liney,  48  N.  Y.  6,  8  Am.  Rep.  511  (1871): 

"After  a  conversion  of  property,  the  title  still  remains  in  the  owner,  and 
the  property  can  be  taken  from  the  wrongdoer  upon  an  execution  against  the 
owner  and  sold,  and  the  proceeds  applied  upon  his  debt,  and  the  owner  will 
thus  have  the  benefit  of  the  property;  and  in  such  case  the  wrongdoer  can 
set  up  this  seizure  and  sale,  not  as  an  entire  defence,  but  in  mitigation  of 
damages,  for  the  reason  that  it  would  be  unjust  for  the  owner  to  recover 
the  value  of  the  property  after  he  has  thus  had  the  benefit  of  it.  It  is  not 
the  fact  of  the  seizure  that  gives  the  defence,  but  that  it  has  been  seizetl 
under  such  circumstances  that  the  owner  has  had,  or  could  have,  the  benefit 
of  it.  But  to  protect  the  wrongdoer,  as  the  law  is  settled  in  this  state,  the 
seizure  must  be  at  the  instance  of  a  third  person,  and  not  at  the  instance 
of  the  wrongdoer,  or  upon  process  in  his  favor." 

7  8  Only  the  opinions  of  Tindal.  C.  J.,  and  Park  and  Bosauquet,  J  J.,  are  here 
given,  and  the  statement  of  facts  is  rewritten. 
Gilb.Dam.— 26 


402  COMPENSATORY   DAMAGES.  (Part    5 

hundred  is  not  liable.  But  the  contrary  is  evident,  from  the  nature  of 
the  contract  of  insurance.  It  is  an  indemnity.  We  every  day  see  the 
insured  put  in  the  place  of  the  insurer.  In  abandonment  it  is  so ;  and 
the  insurer  uses  the  name  of  the  insured.  It  is  an  extremely  clear  case. 
The  act  puts  the  hundred  in  the  place  of  the  trespassers;  and  on  prin- 
ciples of  policy,  I  am  satisfied  it  is  to  be  considered,  as  if  the  insurers 
had  not  paid  a  farthing."  That  the  insurers  may  recover  in  the  name 
of  the  assured  after  he  has  been  satisfied,  appears  from  Randal  v.  Cock- 
ran,  1  Ves.  Sr.  98,  where  it  was  held  that  they  had  the  plainest  equity 
to  institute  such  a  suit.  Such  therefore  is  the  situation  of  the  under- 
writers here,  that  this  case  has  received  its  answer  from  it.  If  the 
plaintiff  cannot  recover,  the  wrongdoer  pays  nothing,  and  takes  all  the 
benefit  of  a  policy  of  insurance  without  paying  the  premium.  Our 
judgment  must  be  for  the  plaintiff. 

Park,  J.  I  am  of  the  same  opinion.  This  point  has  been  decided 
ever  since  the  time  of  Lord  Hardwicke ;  so  much  so  that  it  has  been 
laid  down  in  text-writers,  that  where  the  assured,  who  has  been  in- 
demnified for  a  wrong,  recovers  from  the  wrongdoer,  the  insurers 
may  recover  the  amount  from  the  assured.  In  Randal  v.  Cockran,  1 
Ves.,  Sr.  98,  it  was  said  they  had  the  clearest  equity  to  use  the  name 
of  the  assured,  in  order  to  reimburse  themselves,  and  in  Mason  v. 
Sainsbury,  3  Doug.  60,  the  judges  were  all  unanimous.  They  held  in- 
deed that  the  insurers  could  not  sue  in  their  own  names ;  but  they  con- 
firmed the  general  doctrine,  that  the  wrongdoer  should  be  ultimately 
liable,  notwithstanding  a  payment  by  the  insurers. 

BosANQUET,  J.  I  am  of  the  same  opinion,  and  consider  the  case  as 
decided  by  Mason  v.  Sainsbury,  3  Doug.  GO,  in  1782.  It  is  true  that 
in  Clark  v.  Hundred  of  Blything,  2  B.  &  C.  254,  Lord  Tenterden  made 
observations  on  the  subject  of  the  statute  of  1  Geo.  I ;  but  there  was 
nothing  in  those  observations  to  impeach  the  case  of  Mason  v.  Sains- 
bury, 3  Doug.  60,  where  Buller,  J,,  said:  "Whether  this  case  be  con- 
sidered on  strict  or  on  liberal  principles  of  insurance  law,  the  plaintiff 
must  recover.  Strictly,  no  notice  can  be  taken  of  any  thing  out  of  the 
record.  The  contract  with  the  ofifice,  strictly  taken,  is  a  wager ;  liber- 
ally, it  is  an  indemnity :  but  on  the  words,  it  is  only  a  wager,  of  which 
third  persons  shall  not  avail  themselves.  It  has  been  rightly  admitted, 
that  the  hundred  is  put  in  the  place  of  the  trespassers.  How  could 
the  trespassers  have  availed  themselves  of  this  satisfaction,  made  by 
the  office?  Could  they  have  pleaded  it  by  way  of  accord  and  satisfac- 
tion? It  was  not  paid  as  a  satisfaction  for  the  trespass,  and  the  facts 
of  the  case  would  not  have  supported  such  a  plea.  The  best  way  is  to 
consider  this  case  as  a  contract  of  indemnity,  in  which  the  principle 
is,  that  the  insurer  and  insured  are  as  one  person;  and  in  that  light, 
the  paying  before,  or  after,  can  make  no  difference."  There,  the  action 
was  brought  for  the  benefit  of  the  underwriters;  here,  the  plaintiff 
sues  on  his  own  account.     But  I  think  that  makes  no  difference ;    for 


Ol.'''iy  REDUCTION    OF    ORIGINAL    LOSS.  403 

he  has  the  legal  right  to  the  damages,  and  if  the  underwriters  have  an 
equitable  right  they  will  establish  it  in  another  court. 
Judgment  for  plaintiff.        \-v<-<-^*  -  '^■^  t" 

PERROTT  V.  SHEARER.  -i^^-Vv^ 

(Supreme  CJourt  of  Michigan,  1S68.     17  Mich.  48.) 

CooLEY,  C.  J.^®  The  plaintiff  in  error,  as  sheriff  of  the  county  of 
Bay,  by  virtue  of  a  writ  of  attachment  against  the  goods  and  chattels 
of  Henry  H.  Swinscoe,  levied  upon  a  stock  of  goods  which  Shearer 
claimed,  as  assignee  of  the  firm  of  Swinscoe  &  Son,  composed  of  said 
Henry  H.  Swinscoe  and  George  E.  Swinscoe.     *     *     * 

The  principal  question  in  the  case  springs  from  the  fact  that  the 
goods,  while  under  the  control  of  the  defendant,  in  pursuance,  as  the 
plaintiff  claimed,  of  said  attachment  levy,  were  accidentally  destroyed 
by  fire.  The  plaintiff,  it  appears,  held  at  the  time,  insurance  policies 
upon  them  to  their  full  value,  and,  after  the  fire,  presented  to  the  in- 
surance companies  proofs  of  the  loss,  and  received  pay  therefor.  Up- 
on this  state  of  facts  it  was  claimed  by  defendant,  that  plaintiff's  posi- 
tion was  the  same  as  if  he  had  repossessed  himself  of  the  goods  by 
replevin;  and  that  he  was  entitled  to  recover  damages  only  for  their 
detention  up  to  the  time  of  the  fire.  The  circuit  judge  held  different- 
ly, and  instructed  the  jury  that  the  plaintiff  was  entitled  to  recover  the 
full  value  of  the  goods,  and  he  had  judgment  for  the  value  accordingly. 

It  certainly  strikes  one,  at  first,  as  somewhat  anomalous,  that  a  par- 
ty should  be  in  position  to  legally  recover  of  two  different  parties  the 
full  value  of  goods  which  he  has  lost ;  but  we  think  the  law  warrants 
it  in  the  present  case,  and  that  the  defendant  suffers  no  wrong  by  it. 
He  is  found  to  be  a  wrongdoer  in  seizing  the  goods,  and  he  cannot  re- 
lieve himself  from  responsibility  to  account  for  their  full  value  except 
by  restoring  them.  He  has  no  concern  with  any  contract  the  plaintiff 
may  have  with  any  other  party  in  regard  to  the  goods,  and  his  rights 
or  liabilities  can  neither  be  increased  nor  diminished  by  the  fact  that 
such  a  contract  exists.  He  has  no  equities  as  against  the  plaintiff  which 
can  entitle  him,  under  any  circumstances,  to  an  assignment  of  the 
plaintiff's  policies  of  insurance.  The  accidental  destruction  of  the 
goods  in  his  hands,  was  one  of  the  risks  he  run  when  the  trespass  was 
committed,  and  we  do  not  see  how  the  law  can  relieve  him  from  the 
consequences.  If  the  owner,  under  such  circumstances,  keeps  his  in- 
terest insured,  he  cannot  be  held  to  pay  the  money  expended  for  that 
purpose  for  the  interest  of  the  trespasser.  He  already  has  a  right 
of  action  for  the  full  value  of  the  goods,  and  he  does  not  give  that 
away  by  taking  a  contract  of  insurance.  For  the  latter  he  pays  an 
equivalent  in  the  premium,  and  is,  therefore,  entitled  to  the  benefit  of 

T»  Part  of  the  opinion  is  omitted. 


404  COMPENSATORY  DAMAGES.  (Part    5 

it,  if  any  benefit  shall  result.  The  trespasser  pays  nothing  for  it,  and 
is,  therefore,  justly  entitled  to  no  return.  The  case,  we  think,  is  with- 
in the  principle  of  Merrick  v.  Brainard,  38  Barb.  (N.  Y.)  574,  which 
appears  to  us  to  have  been  correctly  decided.  The  plaintiff  recovers  of 
the  defendant  for  the  wrong  that  has  been  done  him  in  taking  his- 
goods ;  and  he  recovers  of  the  insurance  company  a  large  sum  for  a 
small  outlay,  because  such  payment  was  the  risk  they  assumed,  and  for 
which  they  were  fairly  compensated.  It  is  not  a  question  of  impor- 
tance in  this  incj[uiry,  whether  the  act  of  the  defendant  caused  the  loss 
or  not — his  equitable  claim  to  a  reduction  of  damages,  if  he  could  have 
any,  would  spring  from  the  fact  that  the  plaintiff  recovers  pay  for  his 
property  twice;  but  the  answer  to  this  is,  that  he  recovers  but  once 
for  the  wrong  done  him,  and  he  receives  the  insurance  money  upon  a 
contract  to  which  the  defendant  is  in  no  way  privy,  and  in  respect  to 
which  his  own  wrongful  act  can  give  him  no  equities.     *     *     *  so 


VARNHAM  V.  CITY  OF  COUNCIL  BLUFFS. 

(Supreme  Court  of  Iowa,  1879.     52  Iowa,  G9S,  3  N.  W.  792.) 

Action  at  law  to  recover  for  personal  injuries  sustained  by  plaintiff 
from  falling  into  a  pit  negligently  made  and  permitted  by  defendant 
in  a  public  street  in  the  city.  There  was  a  verdict  and  judgment  for 
$1,100  for  plaintiff.     Defendant  appeals. 

Beck,  C.  J-®^  *  *  *  It  was  shown  by  plaintiff's  testimony  that 
she  lived  with  her  daughter  who,  for  many  weeks  while  the  mother 
was  suffering  from  the  injuries,  nursed  her  and  bestowed  the  care  and 
services  demanded  b}^  her  condition.  The  daughter  was  a  witness  and 
was  asked  this  question:  "What  was  the  service  she  (plaintiff)  has 
had  in  attending  on  her  worth?"  (referring  to  services  rendered  while 
she  was  suffering  from  the  injuries).  The  answer  was  "three  hun- 
dred dollars."  It  is  insisted  that  this  answer  did  not  establish  the 
value  of  the  services.  It  surely  did,  in  the  plainest  language,  give  the 
estimate  of  the  witness,  and  that  was  all  she  was  asked  to  give  or  could 
give. 

It  is  also  objected  that  the  daughter  could  not  recover,  in  the  absence 
of  an  agreement,  from  the  mother  for  these  services,  and  the  testi- 
mony was  therefore,  incompetent.  (But  it  does  not  follow  that  plain- 
tiff cannot  recover  because  the  services  were  rendered  to  her  gratui- 

8  0  That  insurance  money  received  by  him  shall  not  go  in  reduction  of  the 
plaintiff's  damage  occasioned  by  defendant's  wrongful  act,  see,  further,  Brad- 
burn  V.  G.  W.  Ry.  Co.,  L.  R.  10  Exch.  1  (1874) ;  Grand  Trunk  Ry.  Co.  v.  Jen- 
nings, 13  App.  Cas.  800  (1888). 

The  rule  is  the  same  with  respect  to  life  insurance.  Sherlock  v.  Ailing, 
Adm'r.  44  Ind.  199  (1873) ;  B.  &  O.  R.  R.  Co.  v.  Wightman's  Adm'r,  29  Grat. 
(Va.)  431.  26  Am.  Rep.  384  (1877). 

81  Part  of  the  opinion  is  omitted. 


7^k-*>-^ 


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tu 


J?^'-' 


c^-tci,.,  ^fC'i-^  v-V'-  '.v\^  tn^  n-^■rU'<-^^  -^ 


Ch.  1)  *^"^         ^  REDUCTION    OF    ORIGINAL   LOSS.  405 

toiisly.  The  defendant  ought  not  to  profit  by  the  generosity  of  the 
daughter,  or  on  account  of  the  relation  between  the  plaintiff  and  her 
nurse.  The  defendant  ought  to  pay  the  damages  sustained  by  plain- 
tiff. Outlays  and  services  in  nursing  her  are  proper  elements  where- 
on damages  are  based.     *     *     *  ^^ 


WHITELY  V.  MISSISSIPPI  RIVER  W.  P.  &  B.  CO. 

(Supreme  Court  of  Minnesota,  1888.     38  Minn.  523,  38  N.  W.  753.) 

Proceedings  for  the  condemnation  of  certain  lands  of  the  appel- 
lants. The  commissioners  had  awarded  $740,  from  which  an  appeal 
had  been  taken  to  the  District  Court,  where  a  verdict  was  had  for 
$2,500.  That  court  afterward  set  this  verdict  aside.  From  this  order 
an  appeal  is  prosecuted.  It  appeared  that  the  proposed  improvement 
would  cause  a  large  portion  of  appellant's  land  to  be  overflowed. 

Vanderburgh,  J.^^  *  *  ^=  'j^j^g  court  also  states,  as  a  further 
ground  for  its  decision,  that  the  jury  did  not  give  due  weight  "to 
the  evidence  of  the  benefits  to  the  land  adjoining  the  overflow."  It 
does  not  appear,  however,  that  this  reason  was  controlling,  nor  are 
we  able  certainly  to  conclude  from  the  record  that  the  court  adopted 
a  wrong  rule  in  applying  the  evidence  in  relation  to  the  allowance  of 
benefits.  But,  in  view  of  another  trial,  we  ought  to  express  our  opin- 
ion on  this  and  one  or  two  other  questions  likely  to  again  arise.  The 
plaintiff,  if  he  had  asked  therefor,  was  undoubtedly  entitled  to  more 
explicit  instructions  defining  the  rule  on  the  subject  of  benefits,  ap- 
plicable to  this  class  of  cases,  than  was  given.  The  benefits  to  be 
considered  and  allowed  by  the  jury,  where  only  a  part  of  an  entire 
tract  is  taken,  are  not  such  as  are  common  to  lands  generally  in  the 
vicinity,  but  such  as  result  directly  and  peculiarly  to  the  particular 
tract  in  question ;  as,  for  instance,  where  property  is  made  more  avail- 
able and  valuable  by  opening  a  street  through  it,  or  when  land  is 
drained  or  otherwise  directly  improved.     So,  in  this  case,  if  any  part 

82  Sniitli.  J.,  in  Terry  v.  Jewett,  17  Hun,  395  (1870): 

"The  only  otlier  question  tliat  need  be  adverted  to  relates  to  the  damages. 
The  deceased  was  about  31  years  of  age,  and  had  accumulated  some  proI)ertJ^ 
She  was  unmarried,  and  the  plaintiff  was  her  father.  The  defendant's  coun- 
sel asked  the  court  to  charge  that  in  estimating  damages  the  jury  might  con- 
sider the  fact  that  the  plaintiff,  as  next  of  kin,  would  be  entitled  to  the  prop- 
erty of  the  deceased  by  reason  of  her  death.  The  court  refused,  and  charged 
tliat  the  plaintiff  could  only  recover  for  the  pecuniary  injury  that  he  had  sus- 
tained by  the  death  of  the  intestate.  The  request  was  but  little  less  than 
asking  the  court  to  charge  that  the  defendant,  having  benefited  the  plaintiff 
by  killing  his  daughter  and  thus  putting  him  in  possession  of  her  estate,  is 
entitled  to  compensation  for  the  service,  in  the  sliape  of  a  reduction  of  the 
damages  given  by  the  statute.     The  request  was  properly  refused." 

See,  also.  San  Antonio  &  A.  P.  Ky.  v.  Long.  post.  p.  40(>.  That  there  is  no  re- 
duction of  damages  by  reason  of  a  beneht  conferred  by  a  third  party,  see, 
also.  Elmer  v.  Fessenden.  154  Mass.  427.  28  N.  E.  299  (1891). 

83  Part  of  the  opinion  is  omitted. 


406  COMPENSATORY  DAMAGES.  (Part    5 

of  the  meadow  not  taken,  bordering  on  the  overflowed  land,  is  bene- 
fited, or  if  the  property  is  directly  made  more  available  for  practical 
and  advantageous  use  and  enjoyment  by  the  improvement.  Mills, 
Em.  Dom.  (2d  Ed.)  §  152  et  seq.^  But  remote  or  speculative  benefits, 
in  anticipation  of  a  rise  in  property  for  townsite  purposes,  or,  general- 
ly, by  reason  of  the  proposed  improvement  of  a  water  power  and  the 
erection  of  mills  in  the  vicinity,  cannot  be  considered.     *     *     * 


III.  Interest. 
REID  V.  RENSSELAER  GLASS  FACTORY. 

(Supreme  Court  of  New  York,  1824.     3  Cow.  393.) 

Reid  was  agent  of  the  defendants  from  June  2,  1812,  to  the  time  of 
his  death  in  August,  1821.  This  action  was  on  an  account  current; 
the  credits  in  favor  of  Reid  being  for  sums  advanced  by  him  for  the 
purpose  of  keeping  the  factory  in  operation.  There  was  also  a  charge 
for  the  intestate's  salary  as  agent  from  May  1,  1813,  to  November  1, 
1815. 

Savage,  C.  J.®*  *  *  *  It  was  contended  on  the  argument  that 
interest  is  not  recoverable  on  an  unliquidated  account  for  moneys, 
unless  there  be  an  agreement  to  pay  interest,  express  or  implied,  or  a 
fraudulent  detention  or  vexatious  delay,  and  that  the  case  under  con- 
sideration comes  within  that  principle.  A  review  of  some  the  cases 
on  this  subject  may  be  of  use. 

The  oldest  case  cited  is  that  of  Sweatland  v.  Squire,  2  Salk.  623 
(A.  D.  1699),  where  it  was  said  by  Powell,  J.,  that  interest  is  recovered 
by  way  of  damages,  when  damages  are  recovered  ratione  detentionis 
debiti,  but  not  when  damages  only  are  recovered ;  for  interest  is  not 
recovered  occasione  damnorum.  In  Attorney  General  v.  Brewer's 
Company,  1  P.  Wms.  376  (A.  D.  1717),  the  defendants  were  trustees 
of  a  charity,  and  by  improving  the  trust  estate,  had  brought  the  chari- 
ty in  debt.  On  rendering  an  account,  Lord  Cowper  refused  to  allow 
interest  before  the  confirmation  of  the  master's  report;  for,  until 
then,  it  was  not  a  liquidated  sum.  In  Harris  v.  Benson,  2  Str.  910 
(A.  D.  1732),  the  Chief  Justice  said  interest  had  never  been  allowed 
for  money  lent,  without  a  note.  In  Robinson  v.  Bland,  Burr.  1085 
(A.  D.  1760),  it  was  decided  that  interest  was  recoverable  on  money 
lent,  from  the  time  when  it  was  agreed  to  be  paid.  In  Borret  v. 
Goodere,  1  Dick.  428  (A.  D.  1769),  Lord  Camden  said  there  is  no 
instance  where  interest  is  given  on  an  open  mutual  account,  without 
some  particular  circumstances.  That  was  a  case  of  cash  advances, 
as  appears  from  a  full  report  of  it  in  6  Br.  P.  C.  364.     Blaney  v. 

84  Fart  of  the  opinion  is  omitted,  and  the  statement  of  facts  is  rewritten. 


Ch.  1)  INTEREST.  407 

Hendricks,  2  Bl.  761  (A.  D.  1770),  allowed  interest  on  an  account 
stated;  and  the  judges  remarked  that  it  was  properly  allowable  on 
money  lent.  In  Trelawney  v.  Thomas,  1  H.  Bl.  304  (A.  D.  17S9), 
Gould,  J.,  said  interest  was  recoverable  on  money  lent,  and  that  money 
laid  out  for  the  use  of  another  and  money  lent  stood  on  the  same 
ground  in  respect  to  reason,  justice  and  equity,  but  that  no  interest 
should  be  allowed  for  work  and  labor,  or  goods  sold  and  delivered. 
(Upon  the  authority  of  this  case,  Livermore,  in  his  treatise  on  Agency 
(volume  2,  p.  17),  lays  down  the  rule  that  an  agent  who  has  advanced 
money  for  his  principal  will  be  entitled  to  interest  from  the  time  of 
the  advance.  In  Craven  v.  Tickell,  1  Ves.  Jr.  63  (A.  D.  1789),  Lord 
Thurlow  said  money  paid  to  workmen,  who  were  to  have  been  paid 
by  the  defendant,  was  money  advanced  for  him,  and  that  it  was  the 
constant  practice  at  Guildhall,  either  by  the  contract  or  in  damages, 
to  give  interest  upon  every  debt  detained.  In  Walker  v.  Constable, 
1  B.  &  P.  307  (A.  D.  1798),  the  court  were  of  opinion  that,  in  an  action 
for  money  had  and  received,  no  interest  could  be  recovered.  In 
Mountford  v.  Willes,  2  B.  &  P.  337  (A.  D.  1800),  interest  was  allow- 
ed on  goods  sold,  after  the  term  of  credit  agreed  on  had  expired.  In 
Tappenden  v.  Randall,  2  B.  &  P.  471  (A.  D.  1801),  the  rule,  as  pre- 
viously laid  down  in  Walker  v.  Constable,  was  adhered  to ;  and  Moses  v. 
McFarlan,  2  Burr.  1005,  was  cited,  where  it  was  incidentally  said  that 
the  plaintiff  can  recover  no  more  than  the  money  retained  by  the  de- 
fendant against  conscience.  In  De  Haviland  v.  Bowerbank,  1  Campb. 
50  (A.  D.  1807),  Lord  Ellenborough  said,  where  money  of  the  plain- 
tiff had  come  to  the  hands  of  the  defendant,  interest  ought  not  to  be 
recovered,  without  an  agreement,  or  something  from  which  an  agree- 
ment might  be  inferred,  or  proof  that  the  money  had  been  used.  In 
De  Bernales  v.  Fuller,  2  Campb.  426  (A.  D.  1810),  he  adhered  to  the 
same  rule,  and  the  whole  Court  of  King's  Bench  concurred,  that  the 
money  should  not  draw  interest  even  after  a  demand  of  payment ;  and 
afterwards,  in  Calton  v.  Bragg,  15  East,  223  (A.  D.  1812),  the  same 
judge  said  that  Lord  Mansfield  had  sat  in  the  King's  Bench  for  up- 
wards of  30  years,  and  Lord  Kenyon  for  more  than  13  years;  that 
he  had  been  there  above  9  years ;  and  during  all  that  time  no  case 
had  occurred  where  interest  had  been  allowed  upon  money  lent,  with- 
out an  agreement  for  it,  or  for  the  payment  of  the  principal,  at  a  cer- 
tain time,  or  under  special  circumstances,  from  which  a  contract 
might  be  inferred. 

In  Rapelie  v.  Emory,  1  Dall.  (Pa.)  349,  1  L.  Ed.  170  (A.  D.  1788), 
it  was  ruled,  by  Shippen,  President,  that  when  one  man  has  received 
the  money  of  another,  and  retains  it  without  his  consent,  it  is  to  be 
considered  in  the  same  light  as  money  lent,  and  should  carry  interest. 
In  Crawford  v.  Willing,  4  Dall.  (Pa.)  289,  1  L.  Ed.  836  (A.  D.  1803), 
Smith,  J .,  said :  "Whatever  may  have  been  the  doctrine  in  former 
times,  we  have  traced,  with  pleasure,  the  progress  of  improvement,  up- 
on the  subject  of  interest,  to  the  honest  and  rational  rule  that  wher- 


408  COMPENSATORY  DAMAGES.  (Part    5 

ever  one  man  retains  the  money  of  another,  against  his  declared  will, 
the  legal  compensation  for  the  use  of  money  shall  be  charged  and  al- 
lowed, and  that,  in  the  case  of  goods  sold,  interest  should  be  allowed 
after  the  time  of  credit  had  elapsed,  and  demand  of  payment  was  made. 
In  Lessee  of  Dil worth  v.  Sinderling,  1  Bin.  (Pa.)  494,  2  Am.  Dec. 
469  (A.  D.  1808),  Tilghman,  C.  J.,  declared  the  law  to  be  settled  that 
interest  is  recoverable  on  an  account  for  money  lent  and  advanced; 
and  it  was  allowed  to  a  trustee,  upon  advances  laid  out  in  improve- 
ments upon  the  trust  estate,  it  appearing  that  the  improvements  were 
necessary  and  proper.  In  Commonwealth  v.  Crevor,  3  Bin.  (Pa.)  123 
(A.  D.  1810),  he  says  it  is  settled  that  interest  shall  be  recovered 
against  a  man  who  receives  the  money  of  another  and  holds  it  against 
his  consent.  In  Brown  v.  Campbell,  1  Serg.  &  Rawle  (Pa.)  179  (A. 
D.  1814),  he  again  says  the  rule  is  to  allow  interest  where  the  defend- 
ant has  retained  the  money  of  the  plaintiff  unlawfully  and  against  his 
consent:  that,  until  the  defendant  was  informed  that  the  plaintiff's 
money  was  applied  to  his  use,  he  was  in  no  default,  and,  therefore, 
ought  not  to  pay  interest;  but,  being  informed,  he  became  a  wrong- 
doer in  withholding  payment,  and,  therefore,  should  pay  interest. 

In  Wood  V.  Robbins,  11  Mass.  504,  6  Am.  Dec.  182  (A.  D.  1814), 
the  defendant  had  fraudulently  obtained  possession  of  the  plaintiff's 
money;  and  Putnam,  J.,  after  reviewing  most  of  the  authorities,  says 
there  may  be  cases  where  interest  should  not  be  allowed,  as  where  the 
defendant  was  a  mere  stockholder,  ready  to  pay  the  money  to  the  party 
entitled ;  but  when  the  defendant  has  fraudulently  obtained  the  money, 
or  wrongfully  detained  it,  he  must  be  charged  with  interest.  In  Win- 
throp  v.  Carleton,  12  Mass.  4  (A.  D.  1815),  the  plaintiff,  as  consignee, 
made  necessary  advances,  and  recovered  interest  on  them  after  suit 
brought. 

In  Connecticut,  as  appears  by  Selleck  v.  French,  1  Conn.  32,  35, 
6  Am.  Dec.  185,  per  Swift,  J.  (A.  D.  1814),  interest  is  allowed  on 
the  ground  of  a  contract  expressed  or  implied,  or  as  damages  for  the 
breach  of  a  contract,  or  the  violation  of  some  duty;  e.  g.  (1)  upon  an 
express  contract;  (2)  upon  an  implied  contract,  arising  from  usage 
of  trade,  or  former  dealings  between  the  parties;  (3)  upon  a  written 
contract  to  pay  at  a  day  certain,  as  on  bills  and  notes,  and  on  a  policy 
after  the  money  becomes  due;  (4)  for  goods  sold,  after  the  time  of 
credit  has  expired;  (5)  for  money  received  to  the  use  of  another, 
and  retained  contrary  to  duty;  (6)  for  money  obtained  fraudulently, 
if  the  tort  is  waived,  and  assumpsit  brought;  (7)  on  a  liquidated  ac- 
count; (8)  on  book  account  for  services  performed  or  articles  sold, 
when,  from  the  nature  of  the  transaction,  it  appears  not  to  be  the  in- 
tention of  the  parties  that  the  services  or  articles  were  to  rest  on  the 
footing  of  a  mutual  account  on  book;  (9)  but  where  there  are  mutual 
accounts,  founded  on  mutual  dealings,  unless  there  be  some  promise 
or  usage  to  pay  interest,  it  will  not  be  allowed.  In  such  cases,  no  time 
of  payment  is  stipulated,  each  party  is  making  payment,  the  balance 


is  constantly  changing,  and  the  presumption  is  that  no  interest  is  to 
be  charged.  In  the  case  then  before  the  court,  interest  was  allowed ; 
there  were  no  mutual  dealings ;  the  advances  were  all  on  the  part  of 
the  plaintiff;  there  was  no  liquidated  account,  nor  promise,  nor  usage ; 
but  the  debt  was  due,  and  payment  unreasonably  delayed.     *     *     * 

In  Campbell  v.  Mesier,  6  John.  Ch.  (N.  Y.)  2i  (A.  D.  1822),  Chan- 
cellor Kent  says :  "It  is  the  settled  rule,  in  the  law  of  this  state,  that 
money  received  or  advanced  for  the  use  of  another  carries  interest 
after  a  default  in  payment;  and  it  is  a  very  reasonable  and  just  rule." 

From  an  examination  of  these  cases,  it  seems  that  interest  is  allow-  ; 
ed:  (1)  Upon  a  special  agreement;  (2)  upon  an  implied  promise  to 
pay  it,  and  this  may  arise  from  usage  between  the  parties,  or  usage  of 
a  particular  trade;  (3)  where  money  is  withheld  against  the  will  of 
the  owner;  (4)  by  way  of  punishment  for  any  illegal  conversion  or 
use  of  another's  property;  (5)  upon  advances  of  cash,  on  the  authority 
of  Liotard  v.  Graves,  3  Caines  (N.  Y.)  226.     *     *     * 

I  think,  therefore,  that  interest  is  properly  chargeable  on  the  moneys  ■ 
advanced  from  the  time  of  such  advances  respectively  to  the  time  when 
there  was  an  attempt  by  the  defendants  to  liquidate  and  settle  the 
account. 

As  to  the  compensation  for  Reid's  services,  no  sum  was  ever  agreed 
upon  between  the  parties ;  and  his  claim  for  these  was  never  liquidated 
till  it  was  done  by  the  referees.  Interest  ought  not,  therefore,  to  be 
allowed  on  his  salary.     *     *     *" 


WHITE  et  al.  v.  MILLER  et  al. 

(Court  of  Appeals  of  New  York,  1879.     78  N.  Y.  393,  34  Am.  Rep.  544.) 

Earl,  J.*®  This  is  an  action  to  recover  damages  for  a  breach  of 
warranty  in  the  sale  of  cabbage  seeds.  The  warranty,  as  alleged  and 
found,  is  that  the  seeds  were  Bristol  cabbage  seeds ;  and  it  was  found 
that  they  were  not,  and  that  they  did  not  produce  Bristol  cabbages. 
The  rule  of  damages,  as  laid  down  by  the  trial  judge  in  his  charge  to 
the  jury,  was  in  conformity  with  the  decision  of  this  court  when  the 
case  was  here  upon  a  prior  appeal  (71  N.  Y.  118,  27  Am.  Rep.  13,), 
the  difference  in  value  between  the  crop  actually  raised  from  the  seed 
sown  and  a  crop  of  Bristol  cabbage,  such  as  would  ordinarily  have 

85  Lord  Mansfield,  in  Robinson  v.  Bland,  2  Burr.  1077  (17G0): 

"Where  money  is  made  payable  by  asireemeut  between  parties,  and  a  tune 
given  for  the  payment  of  it,  this  is  a  contract  to  pay  the  money  at  the  siyen 
time,  and  to  pay  interest  for  it  from  the  giyen  day  in  case  of  failure  of  pay- 
ment at  that  day ;  so  that  the  action  in  effect  is  brought  to  obtain  a  spocilic 
performance  of  the  contract."  „  , ,  . 

See,  also.  Dodge  v.  Perkins.  9  Pick.  (Mass.)  308  (1830) ;  Wood  v.  Robbins. 
11  Mass  504.  6  Am.  Dec.  182  (1814) :  Boyd  v.  Gilchrist.  15  Ala.  849  (1849) ; 
Christie  v.  I.  L.  Ins.  Co.,  Ill  Iowa.  177,  82  N.  W.  499  (1900). 

8  6  Part  of  the  opiniDn  is  omitted. 


410  COMPENSATORY  DAMAGES.  (Part    5 

been  produced  that  year.  The  judge  also  charged  the  jury  that  if  they 
found  for  the  plaintiffs,  they  should  also  allow  them  interest  upon  the 
amount  of  damage  from  the  commencement  of  the  suit,  April  15,  1869, 
to  the  day  of  their  verdict.  May  30,  1878.  The  jury  found  the  damage 
to  be  $2,000,  and  the  interest  upon  this  sum  to  be  $1,277.49,  and  gave 
plaintiffs  a  verdict  for  the  amount  of  the  two  sums.  The  defendants 
excepted  to  the  charge  as  to  interest,  and  this  exception  presents  the 
only  question  for  our  consideration. 

The  law  in  this  state  as  to  the  allowance  of  interest  in  common-law 
actions  is  in  a  very  unsatisfactory  condition.  The  decisions  upon  the 
subject  are  so  contradictory  and  irreconcilable  that  no  certain  rule 
for  guidance  in  all  cases  can  be  deduced  from  them. 

The  common-law  rule,  as  expounded  in  England,  allowed  interest 
only  upon  mercantile  securities,  or  in  those  cases  where  there  had  been 
an  express  promise  to  pay  interest,  or  where  such  promise  was  to  be 
implied  from  the  usage  of  trade.  Mayne,  Dam.  (2d  Ed.)  105;  Hig- 
gins  V.  Sargent,  2  Barn.  &  C.  349.  In  the  absence  of  these  conditions, 
interest  was  not  allowed  in  an  action  for  money  lent,  or  for  money  had 
and  received,  or  for  money  paid,  or  on  an  account  stated,  or  for  goods 
sold,  even  though  to  be  paid  for  on  a  particular  day,  or  for  work  and 
labor.     Gordon  v.  Swan,  12  East,  419.     *     *     * 

Thus  the  law  remained  in  England  until  St.  3  &  4  Wm.  IV,  which 
provides  that  upon  all  debts  or  sums  certain,  and  in  actions  of  trover 
and  trespass  de  bonis  asportatis,  and  in  actions  upon  policies  of  in- 
surance, the  jury  may  in  their  discretion  allow  interest  as  part  of  the 
recovery. 

We  have  no  statute  in  this  state  regulating  the  allowance  of  interest 
in  such  cases.  The  rule  early  adopted  here  upon  the  subject  was  more 
liberal  than  that  adopted  in  England.  The  allowance  of  interest  was 
at  first  mainly  confined  to  cases  coming  within  the  common-law  rule 
as  above  defined,  and  to  actions  to  recover  money  wrongfully  detained 
by  the  defendant.  The  rule  was  then  extended  so  as  to  allow  interest 
upon  the  value  of  property  unjustly  detained  or  wrongfully  taken  or 
converted,  and  for  goods  sold  and  delivered,  and  for  work  and  labor ; 
and  thus,  by  a  sort  of  judicial  legislation,  the  allowance  of  interest, 
as  a  legal  right,  was  carried  much  further  here  than  the  scope  of  the 
English  statute,  where  the  allowance  was  placed  simply  in  the  discre- 
tion of  the  jury.  At  first  the  allowance  of  interest  in  actions  of  trover 
and  trespass  de  bonis  asportatis  was  in  the  discretion  of  the  jury.  Now 
it  is  held  to  be  matter  of  legal  right.  Down  to  a  recent  period  interest 
was  not  allowed  upon  unliquidated  accounts  or  demands.  Now  that 
last  landmark  has  been  swept  away,  and  the  sole  fact  that  a  demand 
has  not  been  liquidated  is  not  a  bar  to  the  absolute  legal  right  to 
interest. 

A  reference  to  a  few  recent  decisions  will  show  the  present  state, 
or  as  I  might  with  propriety  say,  the  uncertain  state  of  the  law  upon 
the  subject.  • 


Ch.  1)  INTEREST.  ^^^ 

In  Van  Rensselaer  v.  Jewett,  2  N.  Y.  135,  51  Am.  Dec.  275,  the 
action  was  to  recover  rent  payable  in  produce  and  work;    and  it  was 
held  that  the  plaintiff  was  entitled  to  recover  interest  from  the  time 
the  rent  fell  due.     It  was  admitted  by  Judge  Bronson,  writing  the 
opinion,  that  the  damages  were  unliquidated,  and  that  there  was  no 
agreement  for  interest.    He  however  laid  down  the  general  rule  thus : 
Whenever  a  debtor  is  in  default  for  not  paying  money,  delivering  prop- 
erty, or  rendering  services  in  pursuance  of  his  contract,  he  is  charge- 
able with  interest,  from  the  time  of  default,  on  the  specified  amount 
of  money,  or  the  value  of  the  property  or  services,  at  the  time  they^ 
should  have  been  paid  or  rendered.    In  Dana  v.  Fiedler,  12  N.  Y.  40," 
62  Am.  Dec.  130,  the  action  was  on  a  contract  to  recover  damages  for 
the  nondelivery  of  merchandise ;  and  it  was  held  that  the  plaintiff  was 
entitled  to  recover  not  only  the  difference  between  the  contract  price 
and  the  market  value,  but  also  the  interest  on  such  difference,  and  that 
the    allowance  of  interest  did  not  rest  in  the  discretion  of  the  jury. 
In  McMahon  v.  Railroad  Co.,  20  N.  Y.  463,  it  was  held  that  interest 
could  be  allowed  upon  an  unliquidated  disputed  claim  for  work  under 
a  contract   for  the   construction  of  a  railroad.     The   allowance   was 
based  upon  the  curious  ground  that  the  debtor  was  in  default  for  not 
having  taken  the  requisite  steps  to  ascertain  the  amount  of  the  debt. 
In  this  case,  Judge  Selden,  speaking  of  the  case  of  Van  Rensselaer 
V.  Jewett,  said  that  that  case  went  a  step  further  in  the  allowance  of 
interest  than  the  prior  cases,  "and  allowed  interest  upon  an  unliqui- 
dated demand,  the  amount  of  which  could  be  ascertained  by  computa- 
tion, together  with  a  reference  to  well-established  market-values ;   be- 
cause such  values  in  many  cases  are  so  nearly  certain  that  it  would 
be  possible  for  the  debtor  to  obtain  some  proximate  knowledge  of  how 
much  he  was  to  pay."    In  Adams  v.  Bank,  36  N.  Y.  255,  and  Mygatt 
v.  Wilcox,  45  N.  Y.  306,  6  Am.  Rep.  90,  it  was  held  that  interest  could 
be    recovered    in   an    action   by   an    attorney   upon   his    account    for 
services.     *     *     * 

The  right  of  recovery  was  based  upon  the  theory  that  there  was 
default  in  paying  money  due.  In  both  cases  the  account  appears  to 
have  been  substantially  liquidated,  the  liability  to  pay  alone  being  liti- 
gated. In  Smith  v.  Velie,  60  N.  Y.  106,  the  action  was  to  recover  for 
services  as  housekeeper  for  defendant's  intestate  during  many  years. 
The  plaintiff  had  from  time  to  time  received  money  and  goods  to 
apply  upon  her  account.  There  was  no  agreement  as  to  the  measure 
of  compensation,  and  it  was  held  that  the  account  was  unliquidated, 
and  that  interest  was  not  recoverable,  even  from  the  death  of  the  in- 
testate, as  there  was  not  a  fixed  market-value  by  which  the  rate  of 
wages  could  be  determined.  In  McCollum  v.  Seward,  62  N.  Y.  316, 
the  action  was  upon  an  unliquidated  disputed  claim  for  work  and 
labor,  and  the  referee  allowed  interest  from  the  commencement  of  the 
action ;  and  this  upon  the  appeal  of  the  defendant,  was  held  not  to  be 
erroneous.     *     *     * 


412  COMPENSATORY  DAMAGES.  (Part    5 

Upon  the  prior  trial  of  this  action,  interest  was  allowed  from  the 
time  a  crop  could  have  been  harvested  and  sold,  if  the  seed  had  been 
as  warranted.  This  was  held  by  this  court  to  have  been  erroneous, 
on  the  ground  that  "the  demand  was  unliquidated  and  the  amount 
could  not  be  determined  by  computation  simply  or  reference  to  market 
values." 

This  brief  presentation  of  decided  cases  shows  how  difficult  it  is 
to  deduce  from  them  any  certain  rule  as  to  the  allowance  of  interest, 
A  statute  could  probably  be  framed  which  would  produce  more  cer- 
tain if  not  juster  results.  But  it  must  be  seen  that  to  uphold  this 
judgment,  the  rule  as  to  the  allowance  of  interest  must  be  carried  at 
least  one  step  further  than  it  has  ever  yet  been  carried;  and  we  are 
unwilling  that  the  step  should  be  taken  in  this  case. 

After  a  very  thorough  examination  of  the  cases  in  England  and  this 
country,  I  have  not  been  able  to  find  one  prior  to  this  one,  in  which 
it  has  been  held  that  in  a  case  where  the  claim  was  such  as  not  to  draw 
interest  from  an  earlier  date,  interest  could  be  allowed  from  the  com- 
mencement of  the  action,  unless  the  claim  was  such  that  the  interest 
could  be  set  running  by  a  demand,  the  commencing  of  the  action  in 
such  case  being  a  sufficient  demand. 

In  Feeter  v.  Heath,  11  Wend.  479,  the  action  was  to  recover  for 
work,  labor  and  materials.  There  was  no  dispute  as  to  the  amount  of 
plaintiff's  claim ;  the  only  dispute  was  whether  the  defendant  was  per- 
sonally responsible  for  the  same.  The  agreement  was  to  pay  the 
plaintiff  upon  performance  of  his  contract;  and  the  court  held  that  he 
was  entitled  to  interest  at  least  from  the  commencement  of  the  action, 
as  that  was  a  legal  demand  of  payment.     *     *     * 

In  Barnard  v.  Bartholomew,  22  Pick.  (Mass.)  291,  the  action  was 
to  recover  a  balance  of  account  for  money  and  professional  services; 
and  it  was  held  that  "interest  is  to  be  allowed  where  there  is  an  express 
promise  to  pay  it,  or  where  there  is  a  usage  proved  from  which  the 
jury  may  infer  a  promise  to  pay;  and  also  it  may  be  given  as  damages 
for  the  detention  of  a  debt  after  the  time  when  due  by  the  terms  of  the 
agreement,  or  for  neglect  to  pay  a  debt  after  a  special  demand."  In 
Amee  v.  Wilson,  22  Me.  116,  the  action  was  upon  an  account  for  goods 
sold  and  delivered ;  and  it  was  held  that  the  plaintiff  would  be  entitled  to 
interest  prior  to  the  commencement  of  the  suit,  "by  proof  of  an  agree- 
ment to  pay  it,  or  by  proof  of  a  demand  of  payment,  anterior  to  the 
date  of  the  writ." 

The  cases  last  cited  tend  to  show  that  where  an  account  for  services, 
or  for  goods  sold  and  delivered,  which  has  become  due  and  is  pay- 
able in  money,  although  not  strictly  liquidated,  is  presented  to  the  debt- 
or and  payment  demanded,  the  debtor  is  put  in  default  and  interest 
is  set  running;  and  that  if  not  demanded  before,  the  commencement 
of  suit  is  a  sufficient  demand  to  set  the  interest  running  from  that  date. 
But  there  is  no  authority  for  holding  in  a  case  like  this,  where  the  claim 
sounds   purely  in   damages,   is   unliquidated   and   contested,   and   the 


am^nt  so  uncertain  that  a  demand  cannot  set  the  interest  running, 
that  it  can  be  set  running  by  the  commencement  of  the  action.  \\  hy 
should  the  commencement  of  an  action  have  such  effect?  The  clami  is 
no  less  unliquidated,  contested  and  uncertain.  The  debtor  is  no  more 
able  to  ascertain  how  much  he  is  to  pay.  No  new  element  is  added. 
The  conditions  are  not  changed,  except  that  the  disputed  claim  has 
been  put  in  suit;  and  there  is  no  more  reason  or  equity  in  allowing/ 
interest  from  that  than  from  an  earlier  date.  If  interest  as  a  legal 
ricrht  can  be  allowed  in  this  case  from  the  commencement  of  the  action, 
tiren  it  must  be  allowed  from  the  same  date  in  all  actions  ex  contractu, 
and  logically  it  would  be  impossible  to  refuse  it  in  actions  ex  de- 
licto.    *     *     * 

WILSON  V.  CITY  OF  TROY. 

(Court  of  Appeals  of  New  York.  1892.     135  N.  Y   96,  32  N.  E.  44.  18  L.  R.  A. 
449,  31  Am.  St.  Rep.  817.) 

O'Brien,  J."  *  *  *  On  the  night  of  the  13th  of  November, 
1879  a  valuable  horse  belonging  to  one  Learned,  plaintiff's  assignor, 
while  being  driven  through  South  street  in  the  city  of  Troy,  fell  into 
an  open  ditch  or  unguarded  excavation,  made  during  that  day,  and 
was  permanently  injured.  *  *  *  The  exception  presents  the  ques- 
tion whether,  in  an  action  to  recover  damages  to  property  by  reason 
of  negligence  on  the  part  of  the  defendant,  it  is  within  the  power  of 
the  jury  in  the  exercise  of  discretion,  to  include  in  their  award  of 
damages  interest  on  the  sum  found  to  represent  the  diminished  value 
of  the  property  in  consequence  of  the  injury  from  the  time  that  the 
cause  of  action  accrued.     *     *     * 

The  tendency  of  courts  in  modern  times  has  been  to  extend  the 
ri<^ht  to  recover  interest  on  demand  far  beyond  the  limits  within  which 
thtt  right  was  originally  confined.  What  seemed  to  be  the  demands 
of  justice  did  not  permit  the  principle  to  remain  stationary,  and  hence 
it  has  been  for  years  in  a  state  of  constant  evolution.  This,  in  some 
measure,  accounts  for  many  of  the  apparently  contradictory  views  to 
be  found  in  the  adjudged  cases.  (There  are  certain  fundamental  prin- 
ciples, however,  established  by  th>  decisions  in  this  state,  which,  when 
properly  applied,  will  aid  in  the  solution  of  the  question.  There  is,  of 
course,  a  manifest  distinction,  always  to  be  observed,  between  actions 
sounding  in  tort  and  actions  upon  contract.  In  the  latter  class  of 
actions  there  is  not  much  difficulty  in  ascertaining  the  rule  as  to  interest 
until  we  come  to  unliquidated  demands.  The  rule  in  such  cases  has 
quite  recently  been  examined  in  this  court,  and  principles  stated  that 
will  furnish  a  guide  in  most  cases.  White  v.  IMiller,  78  N.  Y  393, 
34  Am.  Rep.  544.     We  are  concerned  now  only  with  the  rule  ap- 

•T  Part  of  the  opinion  is  omitted. 


414  COMPENSATORY  DAMAGES.  (Part    5 

pHcable  in  actions  of  tort.  •  The  right  to  interest,  as  a  part  of  the  dam- 
ages, in  actions  of  trover  and  trespass  de  bonis  asportatis,  was  given 
first  in  England  by  St.  3  &  4  Wm.  IV.  The  recovery  was  not,  how- 
ever, allowed  by  that  statute  as  matter  of  right,  but  in  the  discretion 
of  the  jury.  The  earlier  cases  in  this  state  followed  the  rule  thus  es- 
tablished in  England,  and  permitted  the  jury,  in  their  discretion,  to 
allow  interest  in  such  cases.     *     *     * 

The  principle  that  the  right  to  interest  in  such  cases  was  in  the  dis- 
cretion of  the  jury,  was,  however,  gradually  abandoned,  and  now  the 
rule  is  that  the  plaintiff  is  entitled  to  interest  on  the  value  of  the  prop- 
erty converted  or  lost  to  the  owner  by  a  trespass  as  matter  of  law. 
The  reason  given  for  this  rule  is  that  interest  is  as  necessary  a  part 
of  a  complete  indemnity  to  the  owner  of  the  property  as  the  value  it- 
self, and  in  fixing  the  damages  is  not  any  more  in  the  discretion  of 
the  jury  than  the  value,     *     *     * 

It  is  difficult  to  perceive  any  sound  distinction  between  a  case  where 
the  defendant  converts  or  carries  away  the  plaintiff's  horse  and  a 
case  where,  through  negligence  on  his  part,  the  horse  is  injured  so  as 
to  be  valueless.  There  is  no  reason  apparent  for  a  different  rule  of 
damages  in  the  one  case  than  in  the  other.  In  an  early  case  in  this 
state  the  principle  was  recognized  that  interest  might  be  allowed,  by 
way  of  damages,  upon  the  sum  lost  by  the  plaintiff  in  consequence  of 
defendant's  negligence.  Thomas  v.  Weed,  14  Johns.  255.  We  think 
the  rule  is  now  settled  in  this  state  that,  where  the  value  of  property 
is  diminished  by  an  injury  wrongfully  inflicted,  the  jury  may,  in  their 
discretion,  give  interest  on  the  amount  by  which  the  value  is  diminish- 
ed from  the  time  of  the  injury.  That  is  the  rule  laid  down  in  the  ele- 
mentary books  and  sustained  by  the  adjudged  cases.     *     *     * 

There  is  a  class  of  actions  sounding  in  tort,  in  which  interest  is 
not  allowable  at  all,  such  as  assault  and  battery,  slander,  libel,  seduc- 
tion, false  imprisonment,  etc.  There  is  another  class  in  which  the  law 
gives  interest  on  the  loss  as  part  of  the  damages,  such  as  trover,  tres- 
pass, replevin,  etc. ;  and  still  a  third  class  in  which  interest  cannot  be 
recovered  as  of  right,  but  may  be  allowed  in  the  discretion  of  the 
jury,  according  to  the  circumstances  of  the  case.  This  action  belongs 
to  the  latter  class,  and,  as  we  have  construed  the  charge  as  a  direction 
that  the  jury  might,  in  their  discretion,  allow  interest  on  the  dimin- 
ished value  of  the  horse,  it  was  not  erroneous.     ♦     ♦     * 


wU^iX^    Va/<^  «>~^/^ 


Ch.  1)  INTEREST.  415 

THOMPSON  V.  BOSTON  &  M.  RAILROAD. 

(Supreme  Ctourt  of  New  Hampshire,   1879.     58  N.   II.  524.) 

Case,  for  damages  by  fire  from  the  defendants'  engine.  Plea,  the 
general  issue.  Before  suit,  the  defendants'  superintendent  told  the 
plaintiff  he  would  pay  him  $400  for  the  damages.  The  plaintiff  re- 
fused to  accept  that  sum,  claiming  $600.  No  formal  tender  was 
made  or  pleaded.  The  court  instructed  the  jury,  that  if  the  plaintiff's 
damage  was  not  more  than  $400,  and  if  his  refusal  to  accept  that  sum 
prevented  its  being  paid,  he  was  not  entitled  to  interest.  Verdict  for 
the  plaintiff  for  $375.     Motion  by  the  plaintiff  for  a  new  trial. 

Bingham,  J.^*  It  is  familiar  law  in  this  state  that  interest  may  be 
recovered  (1)  when  it  is  a  legal  claim,  based  upon  the  agreement  of 
the  parties,  that  the  court  is  bound  to  allow ;  (2)  when  it  may  be  allow- 
ed by  a  jury  in  the  nature  of  damages,  as  where  money  is  detained 
after  the  agreed  time  of  payment;  (3)  when  it  is  due  upon  an  open 
account,  after  demand,  or  after  the  commencement  of  a  suit,  which  for 
some  purposes  is  regarded  as  a  demand.  Mcllvaine  v.  Wilkins,  12 
N.  H.  474,  480,  482;    National  Lancers  v.  Lovering,  30  N.  H.  511. 

A  ground  upon  which  the  jury  is  allowed  in  the  instances  named, 
to  give  interest  as  damages,  is  stated  by  Lord  Mansfield,  in  Eddowes 
V.  Hopkins,  Douglass,  376,  to  be  "long  delay,  under  vexatious  and  op- 
pressive circumstances." 

In  actions  of  trespass  and  trover  for  personal  property,  the  damages^ 
being  unliquidated,  the  ordinary  rule  of  damages  is  the  value  of  the 
property  at  the  time  of  the  taking  or  conversion,  with  interest.  Felton 
V.  Fuller,  35  N.  H.  226,  229;  Adams  v.  Blodgett,  47  N.  H.  219,  90 
Am.  Dec.  569. 

The  reason  for  allowing  the  jury  to  add  interest  is  more  satisfactory 
in  cases  of  liquidated  than  unliquidated  damages.  In  the  first  it  is 
for  the  detention  of  money  due,  while  in  the  latter  it  is  the  theory 
of  the  law  that  nothing  is  due  till  the  damages  are  liquidated.  Still  an 
analogy  exists  between  the  two,  in  this,  that  the  right  to  recover  un- 
liquidated damages  accrues  at  the  time  the  injury  is  done,  and  the 
damages  are  assessed  for  the  injury  as  then  received;  and  if  the 
wrongdoer  causes  long  and  vexatious  delay,  and  the  jury  cannot 
add  interest  as  damages  for  the  delay,  as  is  done  in  cases  of  liquidated 
damages,  injustice  is  the  result. 

The  question  of  damages  was  submitted  to  the  jury  in  this  case. 
They  were  instructed  that  if  they  found  certain  facts,  they  would  not 
allow  interest;  otherwise,  they  might.  The  instructions  were,  in 
substance,  that  if  the  defendant  did  not  occasion  the  delay,  but  did  all 
that  was  required  to  make  amends  without  delay,  and  the  fault  was 
that  of  the  plaintiff,  he  would  not  be  entitled  to  interest  as  damages. 

88  Part  of  the  opinion  is  omitted. 


416  COMPENSATORY  DAMAGES.  (Part   5 

This  is  the  rule  in  this  state  in  cases  of  liquidated  damages.  If  the 
detention  occurs  through  the  fault  of  the  creditor,  and  not  that  of  the 
debtor,  no  interest  is  allowed.  Heywood  v.  Hartshorn,  55  N.  H.  476 ; 
Otis  V.  Barton,  10  N.  H.  433 ;  Goff  v.  Rehoboth,  2  Cush.  (Mass.)  475; 
Bank  v.  Bank,  5  Pick.  (Mass.)  106. 

We  think  that  in  actions  of  tort  the  same  rule  may  generally  be  ap- 
plied, and  that  ordinarily  the  right  to  interest  may  be  made  to  depend 
upon  the  cause  of  the  delay,  as  was  done  in  this  case.     *     *     *  ^® 


JACKSONVILLE,  ETC.,  RY.  CO.  v.  PENINSULAR,  ETC.,  CO. 

(Supreme  Court  of  Florida,  1891.    27  Fla.  1,  9  South.  661,  17  L.  R.  A.  33.) 
See  ante,  p.  349,  for  a  report  of  the  case. 


LOUISVILLE  &  N.  R.  CO.  v.  WALLACE. 

(Supreme  Court  of  Tennessee,  1891.    91  Tenn.  35,  17  S.  W.  882,  14  L.  R.  A. 

548.) 

Snodgrass,  J.'**  The  defendant  in  error,  while  in  the  service 
of  the  Louisville  &  Nashville  Railroad  Company  as  brakeman,  sus- 
tained severe  personal  injury,  resulting  in  the  loss  of  a  leg,  which  he 
alleged  was  occasioned  by  the  negligence  of  the  company.  He  sued 
for  $15,000  damages.  *  *  *  The  court  told  the  jury  it  could  as- 
sess plaintiff's  damages  with  or  without  interest,  as  the  jury  should 
see  proper,  in  connection  with  instructions  as  to  the  measure  of  dam- 
ages not  otherwise  complained  of.  The  verdict  assessed  the  damages 
at  $7,000,  with  7  years'  interest,  $2,940,  aggregating  $9,940.     *     *     * 

The  rule  for  determining  damages  for  injuries  not  resulting  in  death 
(where  the  statute  fixes  the  measure),  and  not  calling  for  exemplary 
punishment,  deducible  from  the  decisions  of  this  court  since  its  organi- 
zation in  this  state,  is  that  of  compensation  for  mental  suffering  and 
physical  pain,  loss  of  time,  and  expenses  incident  to  the  injury,  and, 
if  it  be  permanent,  the  loss  resulting  from  complete  or  partial  disabil- 
ity in  health,  mind,  or  person  thereby  occasioned.  And  this  is  the  rule 
most  consonant  to  reason  adopted  in  other  states.  3  Sedg.  Dam.  (Sth 
Ed.)  §  481  et  seq. ;  5  Amer.  &  Eng.  Enc.  Law,  pp.  40-44,  and  notes; 
Railroad  Co.  v.  Read,  87  Am.  Dec.  260.  As  this  sum  in  gross  in- 
cludes all  the  compensation  which  is  requisite  to  cover  pain,  suffering, 
and  disability  to  date  of  judgment,  and  prospectively  beyond,  it  is  in- 
tended to  be  and  is  the  full  measure  of  recovery,  and  cannot  be  sup- 

8  9  See.  also,  Mansfield  v.  N.  Y.  C.  &  H.  R.  R.  Co.,  114  N.  T.  331.  21  N.  B. 
735,  1037.  4  L.  R.  A.  56f^  (1889) ;  Frazer  v.  Bigelow  Carpet  Co.,  141  Mass.  126, 
4  N.  E.  620  (1886);    Pern.  K.  Co.  v.  Ziemer,  124  Pa.  571,  17  Atl.  187  (1889). 

90  Part  of  the  opinion  is  omitted. 


Ch.  1)     ^-1  ^-'-'^  ^^ '■   INTEREST.  *P   . 


^'^ 


W' 


pTemented  by  the  new  element  of  damages  for  the  detention  of  this 
sum  from  the  date  of  the  injury.     The  measure  of  damages  bemg 
thus  fixed,  it  is  expected  that  in  determining  it  juries  and  courts  will 
make  the  sum  given  in  gross  a  fair  and  just  compensation,  and  one  in 
full  of  amount  proper  to  be  given  when  rendered,  whether  soon  or    . 
late  after  the  injury;   as,  if  given  soon,  it'looks  to  continuing  suffer- 
ing and  disability,  just  as,  when  given  late,  it  includes  that  of  the  past. 
It  is  obvious  that  damages  could  not  be  given  for  pain  and  suffering 
and  disability  experienced  on  the  very  day  of  trial,  and  then  interest,  •    , ,. 
added  for  years  before.     These  are  items  considered  to  make  up  the  ,,,^4^^ 
aggregate  then  due,  and  the  gross  sum  then  for  tlie  first  time  judicial-. .j^ 
ly  ascertained.  .  ,  . 

The  error  of  the  court  below  was  in  the  assumption  that  a  like  meas-  ^^^  ^_^^^^ 
ure  of  damages  is  applied  in  this  class  of  cases  as  in  that  of  injury  ^^^^^^^  ^_^ 
to  property  effecting  its  destruction  or  conversion  or  other  unlawful  ^^^^^^^^^^^ 
or  fraudulent  misappropriation,  or  detention  of  property  or  money,  in  u-^jtj^ 
which  the  rule  applied  by  the  circuit  judge  is  held  to  be  a  proper  one;  J\£n^' 
not  on  the  theory,  even  in  this  class  of  cases,  that  interest  as  such  is     .i^^ 
due,  but  that  the  plaintiff  is  entitled  to  the  fix6d  sum  of  money  or  de-  ^  • 
finite  money  value  of  property  converted  or  destroyed,  and  the  jury 
may  give  as  damages  an  amount  equal  to  interest  on  the  value  of  the 
property.    But  such  rule  applies  alone  to  such  cases,  and  not  to  that  of 
personal  injury,  which  does  not  cease  when  inflicted,  and  is  not  sus- 
ceptible of  definite  and  accurate  computation.    It  never  creates  a  debt, 
nor  becomes  one,  until  it  is  judicially  ascertained  and  determined. 
Only  from  that  time  can  it  draw  interest;    and  interest  as  damages 
cannot  at  any  preceding  time  be  added  to  it  without  changing  and  su- 
peradding a  new  element,  never  given  in  this  state  or  any  other  in  a 
similar  case,  so  far  as  our  investigation  has  discovered.     *     *     * 

In  this  connection  we  quote  section  320  of  Sedgwick  on  Damages : 
"It  sufficiently  appears,  from  what  has  already  been  said,  that  there 
is  no  general  principle  which  prevents  the  recovery  of  interest  in  ac- 
tions of  tort.  The  fact  that  the  demand  is  unliquidated  has  been  shown 
to  be  insufficient  to  exclude  interest,  and  there  is  nothing  in  the  mere 
form  of  the  action  which  renders  it  unreasonable  that  interest  should 
be  given.  Nevertheless  it  is  in  the  region  of  tort  that  we  find  the  clear- 
est^cases  for  disallowance  of  interest.  There  are  many  cases  which  are 
not  brought  to  recover  a  sum  of  money  representing  a  property  loss 
of  the  plaintiff,  and  it  is  frequently  said  broadly  that  interest  is  not 
allowed  in  such  actions.  It  is  certainly  not  allowed  in  such  actions  as 
assault  and  battery,  or  for  personal  injury  by  negligence,  libel,  slander, 
seduction,"  etc.  The  measure  of  damage  in  such  case  seems  nowhere 
to  include  this  or  be  based  upon  this  idea.  Even  in  respect  to  injury 
or  destruction  of  property,  where  the  Supreme  Court  of  the  United 
States  has  adopted  fully  the  prevailing  rule  allowing  damages  in  the 
form  of  interest  on  value  of  the  property,  the  rule  has  been  limited  to 
Gilb.Dam.--27 


418  COMPENSATORY   DAMAGES.  (Part   5 

such  injury  of  property  or  property  right  as  had  a  fixed  or  certain  val- 
ue; and  it  is  accordingly  held  in  that  court  that  indefinite  damages,  as 
that  resulting  from  infringement  of  a  patent,  could  not  bear  interest  un- 
til after  the  amount  had  been  judicially  ascertained.  Tilghman  v. 
Proctor,  125  U.  S.  161,  8  Sup.  Ct.  891,  31  L.  Ed.  66i.     *     *     * 

The  charge  and  verdict  were  therefore  erroneous  on  this  point,  and 
prejudicial  to  defendant  to  the  extent  and  only  to  the  extent  of  the 
injury.  The  circuit  judge  might  have  refused  to  receive  the  verdict 
as  to  interest,  and  the  same  effect  may  now  follow  a  remitting  of  the 
interest  by  plaintifif,  if  he  elects  to  do  so.  In  that  event  the  plaintiff  is 
entitled  to  a  judgment  for  $7,000,  with  interest  from  date  of  its  ren- 
dition, and  costs,  and  with  this  modification  the  judgment  will  be  af- 
firmed.    *     *     *  ^ 


BETHEL  V.  SALEM  IMPROVEMENT  CO. 

(Supreme  Court  of  Appeals  of  Virginia.  189G.     93  Va.  354,  25  S.  B.  304,  33 
L.  R.  A.  G02,  57  Am.  St.  Rep.  808.) 

See  post,  p.  593,  for  a  report  of  the  case. 


BREWSTER  v.  WAKEFIELD. 
(Supreme  Court  of  United  States,  1859.    22  How.  118,  16  L.  Ed.  301.) 

Taney,  C.  J.®^  This  case  comes  before  the  court  upon  appeal  from 
the  judgment  of  the  Supreme  Court  of  the  territory  of  Minnesota,  be- 
fore its  admission  into  the  Union  as  a  state. 

It  appears  that  a  suit  was  instituted  in  the  district  court,  in  the  coun- 
ty of  Ramsey,  by  Wakefield,  the  appellee,  against  the  appellant  and 
others,  in  order  to  foreclose  a  mortgage  made  by  the  said  Brewster 
and  his  wife,  of  certain  lands,  to  secure  the  payment  of  three  prom- 
issory notes  mentioned  in  the  proceedings.  The  notes  are  not  set  out 
in  full  in  the  transcript,  but  are  stated  by  the  complainant  in  his  pe- 
tition, or  bill  of  complaint,  to  have  been  all  given  by  Brewster  on  the 
11th  of  July,  1854,  whereby,  in  one  of  them,  he  promised  to  pay,  twelve 
months  after  the  date  thereof,  to  the  order  of  Wakefield,  the  appellee, 
the  sum  of  five  thousand  five  hundred  and  eighty-three  dollars  and 
twenty-five  cents,  with  interest  thereon  at  the  rate  of  twenty  per  cent, 
per  annum  from  the  date  thereof,  for  value  received ;  and  in  another, 
promised  to  pay  to  the  order  of  the  said  Wakefield  the  further  sum  of 
two  thousand  dollars,  twelve  months  after  the  date  thereof,  with  in- 
terest thereon  at  the  rate  of  two  per  cent,  per  month  from  the  date. 
*     *     * 

»i  Part  of  the  opinion  is  omitted. 


CO)     '^'^:I^f  ^^•'<-  ^-r  tiS^^S^st.   "— ^^ '  410 

There  is  no  question  as  to  the  vaHdity  of  the  notes  or  mortgage; 
and  it  is  admitted  that  no  part  of  the  debt  has  been  paid.  The  question 
in  controversy  between  the  parties  is,  whether,  after  the  day  speci- 
fied for  the  payment  of  the  notes,  the  interest  is  to  be  calculated  at 
the  rates  therein  mentioned,  or  according  to  the  rate  established  by  law, 
when  there  is  no  written  contract  on  the  subject  between  the  parties. 
The  question  depends  upon  the  construction  of  a  statute  of  the  territory 
(Rev.  St.  1851,  c.  35),  which  is  in  the  following  words: 

"Section  1.  Any  rate  of  interest  agreed  upon  by  the  parties  in  con- 
tract, specifying  the  same  in  writing,  shall  be  legal  and  valid. 

"Sec.  2.  When  no  rate  of  interest  is  agreed  upon  or  specified  in 
a  note  or  other  contract,  seven  per  cent,  per  annum  shall  be  the  legal 
rate." 

Now,  the  notes  which  formed  the  written  contracts  between  the 
parties,  as  we  have  already  said,  are  not  set  out  in  full  in  the  record. 
We  must  take  them,  therefore,  as  they  are  described  by  the  complainant, 
as  his  description  is  not  disputed  by  the  appellant ;  and,  according  to 
that  statement,  the  written  stipulation  as  to  interest,  is  interest  from  the 
date  to  the  day  specified  for  the  payment.  There  is  no  stipulation  in 
relation  to  interest,  after  the  notes  become  due,  in  case  the  debtor 
should  fail  to  pay  them;  and  if  the  right  to  interest  depended  alto- 
gether on  contract,  and  was  not  given  by  law  in  a  case  of  this  kind,  the 
appellee  would  be  entitled  to  no  interest  whatever  after  the  day  of  pay- 
ment. 

The  contract  being  entirely  silent  as  to  interest,  if  the  notes  should 
not  be  punctually  paid,  the  creditor  is  entitled  to  interest  after  that 
time  by  operation  of  law,  and  not  by  any  provision  in  the  contract. 
And,  in  this  view  of  the  subject,  we  think  the  territorial  courts  commit- 
ted an  error  in  allowing,  after  the  notes  fell  due,  a  higher  rate  of  in- 
terest than  that  established  by  law,  where  there  was  no  contract  to 
regulate  it.     *    *    *  "^^'" 


J, 


v.-t^.  rr.. 


HAND  V.  ARMSTRONG. 
(Supreme  Court  of  Iowa,  ISGo.     18  Iowa,  324.) 

Lowe,  J.®*  The  action  is  founded  upon  the  following  note :  "March 
1st,  18G3.  One  year  after  date,  I  promise  to  pay  to  John  Hand  two 
thousand  dollars,  with  interest  at  ten  per  cent,  per  annum.  [Signed] 
William  Armstrong."  The  defense  set  up  was  that  of  payment  in  full 
of  the  principal  and  the  interest  due  thereon. 

At  the  trial  it  was  shown  and  admitted  that  on  the  1st  day  of  jNIarch, 
18G5,  the  defendant  paid  plaintiff  $3,320,  which  covered  the  princi- 
pal and  ten  per  cent,  interest  thereon  for  the  first  year,  and  six  per 
cent,  interest  for  the  second  year.    The  court  held  that  the  defense  was 

»^  Part  of  the  opinion  is  omitted. 


420  COMPENSATORY  DAMAGES.  (Part    5 

sustained,  construing  the  note  to  draw  ten  per  cent,  interest  from  its 
date  to  its  maturity,  and  only  six  per  cent,  thereafter,  against  the  ob- 
jection of  the  plaintiff,  who  insisted  that  the  true  construction  of  the 
contract  would  give  him  ten  per  cent,  thereon  until  the  same  was  paid, 
which  would  entitle  him  to  $88  at  the  time  the  cause  was  tried,  in 
addition  to  the  above  payment  of  $3,320,  Our  attention  is  invited  to 
the  following  cases  of  authorities,  supporting  the  ruling  below:  Ma- 
comber  v.  Dunham,  8  Wend.  (N.  Y.)  550;  United  States  Bank  v. 
Chapin,  9  Id.  471;  Ludwick  v.  Huntzinger,  5  Watts  &  S.  (Pa.)  51- 
60;  Kitchen  v.  Branch  Bank  of  Mobile,  14  Ala.  233;  Brewster  v. 
Wakefield,  22  How.  118,  16  L.  Ed.  301. 

This  last  reference  is,  perhaps,  the  most  pointed  and  authoritative  of 
the  list,  and  places  the  decision  upon  the  general  ground  that,  when  the 
rate  of  interest  reserved  in  the  note  is  higher  than  that  fixed  by  law, 
the  stipulation  to  pay  the  higher  rate,  from  motives  of  public  policy, 
should  not  be  construed  to  extend  any  further  than  the  period  desig- 
nated in  the  contract  for  the  payment  of  the  debt  or  principal;  in  oth- 
er words,  that  the  conventional  interest  agreed  upon  between  the  par- 
ties, being  other  than  the  legal  interest  regulated  by  statute,  should 
be,  and  is,  qualified  and  limited  by  the  particular  time  therein  specified 
for  its  payment,  unless  there  was  something  expressed  upon  the  face 
of  the  note  showing  a  different  intention,  namely,  that  the  agreed 
rate  of  interest  was  to  continue  until  the  principal  debt  was  paid,'  etc. 

/R^ow,  whilst  this  reasoning  possesses  the  semblance  of  truth,  and  its 
force  is  sensibly  felt  by  us,  we  nevertheless  cannot  overlook  the  cir- 
cumstances under  which  the  note  in  question  was  given,  and  which,  we 
think,  indicate  but  too  clearly  the  intention  of  the  parties  to  extend 
the  stipulation  for  interest  beyond  the  time  specified  for  the  maturity  of 
the  note.  It  seems  to  us  like  other  contracts ;  if  it  is  ambiguous  up- 
on the  point  in  question,  the  intention  of  the  parties  should  have  much 
weight  in  its  construction.  In  agreeing  upon  a  rate  of  interest  differ- 
ent from  the  legal  interest  established  by  law,  what  did  the  parties, 
under  the  circumstances,  contemplate?  That  the  conventional  inter- 
est should  cease  at  the  maturity,  or  when  the  note  should  be  paid  ?  We 
conclude,  without  much  doubt,  that  it  must  have  been  the  latter,  for  the 
reasons:]  First.  That,  inasmuch  as  the  object  of  the  stipulated  interest 
was  obviously  to  pay  for  the  use  or  forbearance  of  the  money,  the  natu- 
ral import  or  construction  of  the  contract  would  be,  that,  as  long  as 
its  use  was  granted  on  the  one  hand,  and  the  payment  thereof  delayed 

,  on  the  other,  the  agreed"  rate  of  interest  should  run.  Second.  Because 
such  has  been  the  uniform  practice  and  understanding  of  the  courts 
of  this  State,  so  far  as  we  are  advised  (the  question  before  at  least 
not  having  been  raised  in  this  court),  and  in  the  business  circles  there- 
of. Third.  Because  this  construction  has  received  a  sort  of  legisla- 
tive sanction  by  the  act  which  authorizes  the  judgment  obtained  upon 
this  description  of  contract  to  draw  the  sarne  interest  expressed  up- 
on its  face,  provided  it  does  not  exceed  ten  per  cent. ;  and  that  is  the 


421 


Ch.  1)  INTEREST. 

rate  of  interest  of  the  note  before  us.  We  can  hardly  conceive  that 
the  parties  to  this  instrument  intended  to  make  a  contract  the  effect 
of  which,  by  impHcation,  was  to  be  at  variance  with  the  commercial, 
leg-islative  and  judicial  construction  for  nearly  a  quarter  of  a  cen- 
tury.    *     *     ♦ 


BOWMAN  v.  NEELY. 

(Supreme  Court  of  Illinois,  1894.     151  111.  37,  37  N.  E.  840.) 

Neely  gave  his  note  to  plaintiff's  intestate  for  $3,481.31,  payable 
one  year  from  date,  with  interest  at  10  per  cent,  from  date.  This 
action  was  brought  nearly  12  years  after  maturity.  The  instrument 
also  contained  the  provision  that  interest  was  payable  annually,  and, 
if  not  so  paid,  should  become  principal  and  bear  interest  at  the  same 
rate. 

Baker,  J.°^  *  ♦  *  Appellant  contends  that  this  provision  in 
the  note  rendered  the  contract  usurious,  and  that  it  was  error  to  allow 
appellee  any  interest  whatever;  that  the  judgment  should  have  been 
only  for  the  principal  of  the  note,  less  the  amounts  of  the  several  pay- 
ments indorsed  thereon. 

In  our  opinion  the  case  at  bar  does  not  come  within  the  purview  of 
section  6,  c.  74,  Rev.  St.  1874,  The  decisions  of  this  court  bearing  on 
this  question  may  be  divided  into  two  general  classes:  /First,  where 
a  greater  rate  of  interest  is  sought  to  be  recovered  than  is  allowed  by 
law.  This  is  usury;  and  in  such  a  case  the  statute  provides  that  the 
creditor  shall  forfeit  his  interest,  and  shall  recover  only  the  principal 
of  the  debt.  And,  second,  where  interest  upon  interest,  or  compound 
interest,  is  sought  to  be  recovered.  In  that  case,  if  no  more  than  the 
legal  rate  of  interest  is  charged,  there  is  no  usury,  within  the  meaning 
of  our  statute.]  From  motives  of  public  policy,  however,  the  law  will 
not  allow  the  recovery  of  compound  interest.  There  are  but  two  ex- 
ceptions to  this  latter  rule:  First,  in  respect  to  interest-bearing  cou- 
pons attached  to  bonds  or  other  securities  for  the  payment  of  money. 
Such  coupons,  when  payable  to  bearer,  have,  by  commercial  usage,  the 
legal  effect  of  promissory  notes,  and  possess  the  attributes  of  negotia- 
ble paper.  They  are  contracts  for  the  payment  of  a  definite  sum  of 
money  on  a  day  named,  and  pass,  by  commercial  usage,  as  negotiable 
paper.  The  interest  on  such  bonds,  however,  is  not  compounded  indef- 
initely, but  is  compounded  once  only.  These  are  the  reasons  why 
they  are  excepted  from  the  operation  of  the  general  rule.  The  second 
exception  is  in  cases  where,  the  interest  having  become  due,  and  re- 
maining unpaid,  the  debtor  then  agrees  to  have  the  accrued  interest 
added  to  the  principal,  and  become  interest  bearing.     Leonard  v.  Vil- 

88  Part  of  the  opinion  is  omitted,  and  the  statement  of  facts  is  rewritten. 


422  COMPENSATORY  DAMAGES.  (Part   5 

iars,  23  111.  377;  Haworth  v.  Huling,  87  111.  23;  Thayer  v.  Mining 
Co.,  105  111.  553 ;  Bank  v.  Davis,  108  111.  633 ;  Gilmore  v.  Bissell,  124 
111.  488,  16  N.  E.  925;  Bowman  v.  Neely,  137  111.  443,  27  N.  E.  758. 

(The  case  at  bar,  however,  does  not  come  within  either  of  these  ex- 
ceptions to  the  general  rule.  Here,  the  payment  of  the  interest  was  not 
secured  by  a  separate  and  independent  instrument,  as  in  the  case  of 
coupons  attached  to  bonds,  etc.,  but  the  payment  of  the  principal  and 
interest  was  secured  by  one  and  the  same  paper;  and  the  payment  of 
compound  interest  was  here  agreed  upon  in  advance,  and  not  after  the 
interest  had  accrued.  Appellee  was  entitled  to  recover  the  principal 
of  the  note  here  in  controversy,  he  making  proper  deductions  for  all 
payments  made,  together  with  simple  interest  from  the  date  thereof, 
at  the  rate  of  10  per  cent,  per  annum, — the  rate  contracted  for  in  the 
note, — that  being  lawful  interest  at  the  time  the  instrument  was  ex- 
ecuted.    ♦     *     * 


IV.  Expenses  Incurred. 
(A)  In  Reliance  upon  Promise, 

UNITED  STATES  v.  BEHAN. 

(Supreme  Court  of  United  States,  18S4.     UO  U.  S.  338,  4  Sup.  Ct.  81,  28  L. 

Ed.  168.) 

The  claimant  averred  that  the  United  States  government  had  given 
him,  as  bondsman  on  a  contract  between  the  United  States  and  one 
Roy,  the  privilege  of  completing  the  work  under  such  contract,  but 
that,  after  he  had  gone  to  great  expense  in  providing  the  necessary 
machinery,  materials,  and  labor,  it  was  found  that  the  plan  of  improve- 
ment adopted  by  the  government  was  a  failure  and  he  was  ordered  to 
cease  work.  The  contract  was  of  the  kind  to  require  extensive  prepar- 
ations and  large  initial  expenditures,  and  contemplated  the  covering 
of  a  portion  of  the  bed  of  the  Mississippi  river  with  artificial  cane 
mats.  The  claimant  seeks  to  recover  such  expenditure  and  the  profits 
which  he  alleges  he  could  have  made  if  allowed  to  complete  the  con- 
tract. 

Bradley,  J.i  *  *  *  The  prima  facie  measure  of  damages  for 
the  breach  of  a  contract  is  the  amount  of  the  loss  which  the  injured 
party  has  sustained  thereby.  If  the  breach  consists  in  preventing  the 
performance  of  the  contract,  without  the  fault  of  the  other  party,  who 
is  willing  to  perform  it,  the  loss  of  the  latter  will  consist  of  two  distinct 
items  or  grounds  of  damage,  namely — first,  what  he  has  already  ex- 
pended towards  performance  (less  the  value  of  materials  on  hand)  ; 
secondly,  the  profits  that  he  would  realize  by  performing  the  whole 
contract.    The  second  item,  profits,  cannot  always  be  recovered.    They 

1  Part  of  the  opinion  is  omitted,  and  the  statement  of  facts  is  rewritten. 


Ch.  1)  EXPENSES    INCURRED.  423 

may  be  too  remote  and  speculative  in  their  character,  and  therefore  in- 
capable of  that  clear  and  direct  proof  which  the  law  requires.  *  *  * 
But  failure  to  prove  profits  will  not  prevent  the  party  from  recover- 
ing his  losses  for  actual  outlay  and  expenditure.  If  he  goes  also  for 
profits,  then  the  rule  applies  as  laid  down  in  Speed's  Case,  8  Wall.  77, 
19  L.  Ed.  449,  and  his  profits  will  be  measured  by  "the  difference  be- 
tween the  cost  of  doing  the  work  and  what  he  was  to  receive  for  it," 
etc.  The  claimant  was  not  bound  to  go  for  profits,  even  though  he 
counted  for  them  in  his  petition.  He  might  stop  upon  a  showing  of 
losses.  The  two  heads  of  damage  are  distinct,  though  closely  related. 
When  profits  are  sought  a  recovery  for  outlay  is  included  and  some- 
thing more.  That  something  more  is  the  profits.  If  the  outlay  equals 
or  exceeds  the  amount  to  be  received,  of  course  there  can  be  no  profits. 
/When  a  party  injured  by  the  stoppage  of  a  contract  elects  to  rescind 
it,  then,  it  is  true,  he  cannot  recover  any  damages  for  a  breach  of  the 
contract,  either  for  outlay  or  for  loss  of  profits ;  he  recovers  the  value 
of  his  services  actually  performed  as  upon  a  quantum  meruit.)  There 
is  then  no  question  of  losses  or  profits.  But  when  he  elects  to  go  for 
damages  for  the  breach  of  the  contract,  the  first  and  most  obvious 
damage  to  be  shown  is  the  amount  which  he  has  been  induced  to  ex- 
pend on  the  faith  of  the  contract,  including  a  fair  allowance  for  his 
own  time  and  services.  If  he  chooses  to  go  further,  and  claims  for  the 
loss  of  anticipated  profits,  he  may  do  so,  subject  to  the  rules  of  law  as 
to  the  character  of  profits  which  may  be  thus  claimed.  It  does  not  lie, 
however,  in  the  mouth  of  the  party,  who  has  voluntarily  and  wrong- 
fully put  an  end  to  the  contract,  to  say  that  the  party  injured  has  not 
been  damaged  at  least  to  the  amount  of  what  he  has  been  induced  fair- 
ly and  in  good  faith  to  lay  out  and  expend  (including  his  own  services), 
after  making  allowance  for  the  value  of  materials  on  hand ;  at  least 
it  does  not  lie  in  the  mouth  of  the  party  in  fault  to  say  this,  unless  he 
can  show  that  the  expenses  of  the  party  injured  have  been  extravagant, 
and  unnecessary  for  the  purpose  of  carrying  out  the  contract.     *     ♦     * 


MASTERTON  v.  MAYOR,  ETC.,  OF  CITY  OF  BROOKLYN. 
(Court  of  Appeals  of  New  York,  1S45.     7  Hill,  61,  42  Am.  Dec  38.) 
See  ante,  p.  241,  for  a  report  of  the  case. 


BERNSTEIN  v.  MEECH. 

(Court  of  Appeals  of  New  York,  ISai.     130  N.  Y.  354,  29  N.  E.  255.) 

Bradley,  ].^  By  contract  of  date  August  4,  1S87,  between  the  par- 
ties the  defendants  agreed  to  furnish  to  the  plaintiff  the  opera  house 
known  as  the  "Academy  of  Music"  in  the  city  of  Buft'alo,  December 

*  Part  of  the  opinion  Is  omitted. 


424  COMPENSATORY  DAMAGES.  (Part    5 

22d,  23d,  and  24th,  for  four  performances  by  Jarbeau  Comedy  Com- 
pany, and  for  that  purpose  the  plaintiff  agreed  to  furnish  the  services 
of  that  company  during  that  time,  and  to  take  as  the  consideration  50 
per  cent,  of  the  gross  receipts  of  all  sums  realized  from  the  perform- 
ances. When  this  contract  was  executed  each  of  the  parties  had  the 
right  to  assume  that  the  other  would  observe  its  stipulations.  The  per- 
formances did  not  take  place;  and  the  reason  why  they  did  not  the 
plaintiff  charges  was  attributable  to  the  breach  of  the  contract  by  the 
defendants.  The  purpose  of  this  action  was  to  recover  damages  as 
the  consequence.     *     *     * 

The  remaining  questions  have  relation  to  the  damages  which  were 
the  subject  of  the  plaintiff's  recovery.  The  general  rule  on  the  subject 
would  permit  him,  in  case  of  breach  by  the  defendants,  to  recover  the 
value  of  his  contract.  And  that  was  dependent  upon  the  receipts  to 
be  realized  from  the  contemplated  performances  by  the  plaintiff's  com- 
pany. The  results  which  would  in  that  respect  have  been  produced  if 
the  company  had  been  permitted  to  perform  the  contract  were  spec- 
ulative, and  by  no  probative  means  ascertainable.  It  is  contended  on 
the  part  of  the  defendants  that  recovery  could  be  founded  on  no  oth- 
er basis,  and  therefore  the  plaintiff  could  recover  nominal  damages 
only.  The  value  of  the  contract  to  the  plaintiff  was  in  the  profits 
and  in  the  amount  of  them  which  may  have  been  realized  over 
his  expenses  attending  its  performance.  Those  profits,  not  being  sus- 
ceptible of  proof,  were  not  the  subject  of  recovery.  But  by  the  breach 
of  the  contract  by  the  defendants  the  plaintiff  was  denied  the  oppor- 
tunity which  the  observance  of  it  could  have  given  him  to  realize  50 
per  centum  of  such  receipts  as  would  have  been  produced  by  it.  His 
loss  also  consisted  of  the  expenses  by  him  incurred  to  prepare  and  pro- 
vide for  such  performance.  While  the  plaintiff  was  unable  to  prove 
the  value  in  profits  of  his  contract,  he  was  properly  permitted  to  recov- 
er the  amount  of  such  loss  as  it  appeared  he  had  suffered  by  the  de- 
fendants' breach.    Griffin  v.  Colver,  16  N.  Y.  489,  69  Am.  Dec.  718. 

The  evidence  warranted  the  conclusion  that  the  plaintiff,  through 
his  agent,  made  preparations  for  the  performance  of  the  contract,  and 
that  the  plaintiff,  with  his  troupe,  appeared  at  Buffalo  prepared  and 
in  readiness  to  perform.  iThe  amount  of  his  expenses  incurred  for  the 
purpose  of  such  performance  was  proved,  and  they  were  the  basis 
of  the  recovery.^  It  is  unnecessary  to  refer  specifically  to  the  items  of 
those  expenses.'  The  jury  were,  upon  the  evidence,  permitted  to  find 
that  to  the  amount  of  the  recovery  they  were  legitimately  incurred 
for  the  purposes  of  the  performance  of  the  contract,  and  that,  with  a 
view  to  such  purpose,  the  plaintiff  suffered  a  loss  to  that  extent.  Those 
expenses  may  be  deemed  to  have  been  fairly  within  contemplation 
when  the  contract  was  made.  It  cannot  be  assumed  that  any  part  of 
this  loss  would  have  been  sustained  by  the  plaintiff  if  he  had  been  per- 
mitted to  perform  his  contract.  And  assuming,  as  we  must  here,  that 
the  exclusion  of  the  plaintiff's  company  from  the  use  of  the  opera  house 


425 

Ch    1)  EXPENSES    INCUURLD. 

at  the  time  in  question  was  caused  by  the  defendants'  breach  of  the 
contract,  the  plaintiff's  loss,  equal  to  the  amount  of  his  expenses  legiti- 
mately and  essentially  incurred  for  the  purpose  of  its  performance, 
was  the  consequence  of  their  default,  and  properly  recoverable  by 
him.     *     *    * 

HAWLEY  V.  HODGE.  oUI—^'-t 

(Supreme  Court  of  Vermont,  1835.    7  Vt  237.)  '^  \^'^ 

Action  of  damages  in  that,  although  plaintiff  and  defendant  had  ^''^^Jj^ 
mitted  certain  matters  in  controversy  to  an  arbitrator,  the  defendant  >?^ 
had  afterwards  revoked  the  submission.    The  plaintiff  came  from  the  IH.^- ^  J..- 
state  of  New  York,  over  400  miles,  to  attend  the  submission,  and  had 
paid  his  agent  and  also  the  arbitrator  certain  fees  for  attendance  upon^,,,,  ^^ 

one  session.  ,         ,  ^  y  ^^.'^ ^  }" 

Williams,  C.  J.»     *     *     *     The  rule  is  that  where  a  party  revokes  ^^.  ^^^ 
he  must  pay  all  dahiages  which  the  other  party  has  sustained,    vihis  -^ 

would  of  course,  include  the  cost  of  the  suit  discontmued,  the  costs  -r^.  _r^ 
and  expenses  which  the  party  had  been  subjected  to  in  preparing  for  t^X^^^t^ 
trial,  which  he  would  not  have  incurred  or  been  subjected  to  but  tor -.w^^ 
the  submission,  and  which  he  cannot  recover  in  any  other  way.   )  ^  ^ 


(B)  In  Attempt  to  Avoid  Consequences, 
MITCHELL  V.  BURCH. 

(Supreme  Court  of  Indiana,  1S71.    36  Ind.  529.) 
BuSKiRK    J.s     *     *     *     It  is  next  insisted  that  the  damages  were 
excessive   for  the  detention  of  the  nine  hogs  that  were  replevied.    As 
we  have  seen,  the  jury  assessed  the  plaintiff's  damage  at  twenty-five 
dollars  for  the  detention  of  the  nine  hogs. 

The  solution  of  this  question  will  depend  upon  the  elements  that 
enter  into  and  constitute  the  basis  for  determining  the  measure  of  dam- 
ages for  the  detention  of  personal  property,  in  an  action  of  replevin. 
The  plaintiff  testified  as  follows : 

"I  lost  two  weeks'  time  hunting  hogs ;  hands  were  worth  one  dollar 
per  day ;  team  to  plow  worth  from  one  dollar  and  fifty  cents  to  two 
dollars  per  day;  had  to  stop  the  plow  while  hunting  the  hogs,  as  I 
only  had  two  work  horses,  and  used  one  to  ride." 

8  Part  of  the  opinion  is  omitted,  and  tlie  statement  of  facts  is  rewritten. 
4  See,  also.  Pond  v.  Harris,  113  Mass.  114  (1873);   and  read,  in  this  connec- 
tion, Smeed  v.  Foord,  ante,  p.  199. 
6  Part  of  the  opinion  is  omitted. 


426  COMPENSATORY  DAMAGES.  (Part    5 

An  elementary  writer  states  the  law  thus :  "When  the  property  has 
been  delivered  to  the  plaintiff,  and  the  jury  find  for  him,  they  should 
assess  the  damages  for  the  detention,  and  he  is  entitled  to  compensation 
for  any  deterioration  in  the  value  of  the  goods  replevied,  while  they 
were  in  the  hands  of  the  defendant,  and  also  for  his  time  lost  and  ex- 
pense incurred  in  searching  for  his  property,  and  to  the  hire  of  slaves. 
When  the  property  has  not  been  delivered  to  him,  the  jury  should 
also  find  the  value  of  the  property.  In  this  case  the  damages  for  de- 
tention are  usually  interest  on  the  value  from  the  time  of  taking,  but 
in  proper  cases  exemplary  damages  may  be  given."  Morris,  Replevin, 
193,  194. 

Nelson,  C.  J.,  in  delivering  the  opinion  of  the  court  in  Bennett  v. 
Lockwood,  20  Wend.  (N.  Y.)  224,  32  Am.  Dec.  532,  says:  "The  de- 
fendant took  the  horse  and  wagon  of  the  plaintiffs  wrongfully,  and 
used  them,  by  reason  of  which  taking  the  plaintiffs  were  induced  to 
believe  that  the  person  to  whom  they  had  hired  them  temporarily  had 
absconded,  and  therefore  they  went  in  pursuit  of  their  property,  and 
expended  time  and  money.  It  is  insisted  for  the  pl^mtift's  in  error  that 
the  common  pleas  erred  in  allowing  the  plaintiffs  to  recover  for  the 
time  spent,  and  expenses  incurred,  on  the  ground  that  the  damages  thus 
claimed  were  not  the  natural  or  necessary  consequence  of  the  wrongful 
taking.  Admitting  the  counsel  for  the  plaintiffs  to  be  right  in  this 
proposition,  it  is  no  objection  to  the  recovery  if  the  damages  were 
proximate  and  not  too  remote,  and  were  claimed  in  the  declaration. 
1  Ghitty's  R.  333;  Saund.  PI.  &  Ev.  136.  C  Here  the  damages  were  du- 
ly claimed ;  they  occurred  in  the  use  of  reasonable  means  on  the  part 
of  the  plaintiffs  to  repossess  themselves  of  their  property,  and  were 
occasioned  by  the  wrongful  act  of  the  defendant."     *     *     * 

(We  are  of  the  opinion  that  the  plaintiff  was  entitled  to  recover  dam- 
ages for  the  time  necessarily  spent  and  expenses  incurred  in  hunting 
for  his  hogs.  He  does  not  claim  for  any  time  spent  or  expense  incur- 
red after  he  had  ascertained  where  his  hogs  were.  He  would  have  no 
right  to  recover  for  time  spent  or  expenses  incurred  after  he  had  ascer- 
tained where  his  property  was.  It  is  shown  by  the  evidence  by  the  de- 
fendant that  he  knew  that  the  plaintiff  was  hunting  for  his  hogs,  and 
did  not  inform  him  where  they  were.  We  are  of  the  opinion  that  the 
hogs  of  the  plaintiff  were  wrongfully  taken  away  by  the  defendant,  and 
that  he  permitted  the  plaintiff  to  spend  time  and  money,  and  delay  his 
plowing  in  the  search  for  his  property,  and  that  it  is  reasonable  and 
just  that  he  should  compensate  him  in  damages  therefor.  We  do  not 
think  the  amount  found  by  the  jury  is  excessive,  upon  the  facts  in  the 
case.  \  *     *     *  " 

6  Accord:  Bennett  v.  Lockwood,  20  Wend.  (N.  T.)  224,  C2  Am.  Dec.  532 
(1838). 

But  such  expenses  cannot  be  more  than  what  would  be  reasonable  under 
all  the  circumstances.  Le  Blanche  v.  L.  &  N.  W.  Ry.,  L.  R.  1  C.  P.  Div. 
2SG  (ISTG). 


Ch.  1)  EXPENSES    INCURRED.  427 

HART  V.  CHARLOTTE,  C.  &  A.  R.  CO. 

(Supreme  Court  of  South  Carolina,  1890.     33  S.  C  427,  12  S.  E.  9,  10  L,  R,  A. 

794.) 

Simpson,  C.  j.t  *  *  *  jt  seems  that  the  respondent,  shortly 
after  his  injury,  took  a  trip  to  the  electric  wells  in  Georgia,  and  also 
to  Glenn  Springs  in  this  state,  and  he  was  permitted  by  his  honor,  the 
trial  judge,  to  testify,  against  defendant's  objection,  as  to  the  expenses 
incurred  on  these  trips,  as  part  of  the  damages  claimed. 

The  first  two  exceptions  of  defendant  allege  error  to  the  admission 
of  this  testimony,  on  the  ground  there  was  no  preliminary,  affirmative 
evidence  introduced  showing  that  these  trips  were  a  part  of  any  ordi- 
nary or  usual  course  of  treatment  for  such  injuries  as  plaintiff  had  re- 
ceived, and  that  the  expenses  incurred  therein  were  reasonable  and  nec- 
essary. (^  Where  an  alleged  wrong  is  shown  to  have  been  the  cause  of 
the  injury  complained  of,  it  is  also  to  be  deemed  the  cause  of  all  of  its 
concomitant  and  incidental  details,  which  are  constituent  parts  of  the 
injury,  including  necessary  and  judicious  expenditures  made  to  stay 
or  efiface  the  wrong,  or  to  limit  the  injury.)  1  Suth.  Dam.  96.  Where 
a  horse  was  injured,  and  was  sent  to  a  farrier  for  treatment,  it  was  held 
that  the  plaintiff  was  entitled  to  recover  for  the  keep  of  the  horse,  as 
well  as  for  the  charge  of  the  farrier.    Id.  100,  158. 

Expenses  for  surgical  and  medical  aid  and  nursing  when  necessary 
and  reasonably  incurred,  are  part  of  the  injury,  and  may  be  recovered 
under  proper  pleadings.  3  Suth.  Dam.  720.  (There  can  be  no  doubt 
that,  if  the  expenses  incurred  by  the  plaintiff  here  in  the  matter  involv- 
ed in  these  exceptions  were  necessary,  reasonable,  and  judicious  ex- 
penditures they  would  be  a  proper  ingredient  in  the  damages  of  the 
plaintiff,  provided,  of  course,  that  the  injury  intended  thereby  to  be 
stayed  and  effaced  had  been  caused  by  the  negligent  act  of  the  defend- 
ant as  alleged.)  Now,  whether  such  expenditures  were  reasonable  and 
necessary  and  judicious  was  a  question  of  fact.  His  honor  did  not 
undertake  to  decide  this  question  of  fact,  but  he  simply  admitted  the 
testimony  offered  as  competent,  as  bearing  upon  the  amount  of  said 
expenditures,  leaving  the  question  as  to  their  necessity  and  reason- 
ableness open  to  the  jury,  subject  to  such  further  testimony  as  might 
be  introduced  pro  and  con.     *     *     * 


ELLIS  v.   HILTON. 

(Supreme  Court  of  Michisiin,  1880.     78  Mich.  150,  43  N.  "W.  1048,  6  L.  R.  A. 
454,  18  Am.  St.  Rep.  438.) 

See  ante,  p.  238,  for  a  report  of  the  case.* 

'  Part  of  the  opinion  is  omitted. 

8  See,  also,  Ix)eser  v.  Humphrey,  ante,  p.  236;  Gillett  v.  Western  Railroad 
Corporation,  post.  p.  51G ;   Barrick  v.  Schifferdeclcer,  post.  p.  508.  note. 


428  COMPENSATORY   DAMAGES.  "  (Part   5 

(C)  Court  Expenses, 

DAY  V.  WOODWORTH. 
(Supreme  Court  of  United  States,  1851.    13  How.  363,  14  L.  Ed.  181.) 
See  ante,  p.  88,  for  a  report  of  the  case. 


OELRICHS  V.  SPAIN. 

(Supreme  Court  of  United  States,  1872.     15  Wall.  211,  21  L.  Ed.  43.) 

This  was  an  action  brought  on  an  injunction  bond  conditioned  to 
"pay  all  damages  and  costs"  which  the  parties  enjoined  "shall  sustain 
by  the  granting  of  the  injunction."  The  injunction  was  subsequently 
dissolved.  The  court  below  allowed  counsel  fees  in  defending  the  en- 
tire suit  as  a  part  of  the  damages  covered  by  the  bonds. 

SwAYNE,  j.»  *  *  *  jj^  actions  of  trespass  where  there  are  no 
circumstances  of  aggravation,  only  compensatory  damages  can  be  re- 
covered, and  they  do  not  include  the  fees  of  counsel.  The  plaintiff 
is  no  more  entitled  to  them,  if  he  succeed,  than  is  the  defendant  if 
the  plaintiff  be  defeated.  Why  should  a  distinction  be  made  between 
them?  In  certain  actions  ex  delicto  vindictive  damages  may  be  given 
by  the  jury.  In  regard  to  that  class  of  cases  this  court  has  said:  "It 
is  true  that  damages  assessed  by  way  of  example  may  indirectly  com- 
pensate the  plaintiff  for  money  expended  in  counsel  fees,  but  the 
amount  of  these  fees  cannot  be  taken  as  the  measure  of  punishment 
or  a  necessary  element  in  its  infliction."  Day  v.  Woodworth  et  al., 
13  How.  370,  371,  14  L.  Ed.  181. 

The  point  here  in  question  has  never  been  expressly  decided  by  this 
court,  but  it  is  clearly  within  the  reasoning  of  the  case  last  referred 
to,  and  we  think  is  substantially  determined  by  that  adjudication.  In 
debt,  covenant  and  assumpsit  damages  are  recovered,  but  counsel  fees 
are  never  included.  So  in  equity  cases,  where  there  is  no  injunction 
bond,  only  the  taxable  costs  are  allowed  to  the  complainants.  The 
same  rule  is  applied  to  the  defendant,  however  unjust  the  litigation 
on  the  other  side,  and  however  large  the  expensa  litis  to  which  he  may 
have  been  subjected.  The  parties  in  this  respect  are  upon  a  footing" 
of  equality.  There  is  no  fixed  standard  by  which  the  honorarium  can  be 
measured.  Some  counsel  demand  much  more  than  others.  Some  cli- 
ents are  willing  to  pay  more  than  others.  More  counsel  may  be  em- 
ployed than  are  necessary.  When  both  client  and  counsel  know  that 
the  fees  are  to  be  paid  by  the  other  party  there  is  danger  of  abuse. 
A  reference  to  a  master,  or  an  issue  to  a  jury,  might  be  necessary  to 
ascertain  the  proper  amount,  and  this  grafted  litigation  might  pos- 

»  Part  of  the  opinion  is  omitted,  and  the  statement  of  facts  is  rewritten. 


\M,c 


Ch.  1)  EXPENSES    INCURRED.  *^'' 

sibly  be  more  animated  and  protracted  than  that  in  the  original  cause. 
It  would  be  an  office  of  some  delicacy  on  the  part  of  the  court  to  scale 
down  the  charges,  as  might  sometimes  be  necessary. 

We  think  the  principle  of  disallowance  rests  on  a  solid  foundation 
and  that  the  opposite  rule  is  forbidden  by  the  analogies  of  the  law  and 
sound  public  policy.     *     *     *  '° 

10  In  Noble  V.  Arnold,  23  Ohio  St.  264  (1872),  Judge  ^^^y^^!^^'-,^.,^.^^„ 
"To  effect  an  ininnction,  section  242  of  the  Code  requires  the  party  obtaining 
it  to  4ve  an  undertaking,  with  sureties,  'to  secure  the  party  enjoined  the 
damai  he  mai  sustain,  if  it  be  finally  decided  that  the  in  unction  ought  not 
?oS?been  glinted.'  The  undertaking  in  this  case  was  given  in  accordance 
with  find  in  the  language  of  the  statute.  *  „„ 

^ ''?tTs  the  undoubted'-privilege  of  the  party  to  P''^^"^?^/ J^,^«  "^,^11^  at° 
iuiuuction  which  has  been  wrongfully  obtained.  To  the  extent  ot  .the  at 
ton  ey  fees  and  expenses  necessarily  incurred  for  that  purpose,  he  is  dam- 
fltpdbv  the  injunction.  The  express  undertaking  is  to  pay  "the  damages  he 
nfav  sustain  by  reason  of  the  injunction,'  if  it  ought  not  to  have  been  granted. 
Such  expensed'  then   come  within  the  damages  he  is  entitled  to  recover  upon 

^^^-TMsTiew  "if"  sustained  by  the  weight  of  authority  in  the  cases  where  the 
language  S  the  ISsMent^in  suit  is  similar  to  that  of  the  undertaking  in 
Scale,  and  in  other  analogous  cases.  Edwirds  v.  Bodine,  11  ^^f^J^-^;^^ 
99-^  Corcoran  v  Judson,  24  N.  Y.  106;  Behrens  v.  McKenzie,  23  Iowa,  333. 
02  im  Dec  428:  Langworthy  v.  McKelvey,  25  Iowa,  48;  Ah  Thaie  v  Quan 
Wan  3  Cal  216  Prader  v.  Grim,  13  Cal.  58.V,  Morris  v.  Price,  2  Blackf. 
and.)  457;  Derry  Bank  v.  Heath.  45  N.  H.  524;  Ryan  v.  Anderson,  2o  111. 
^7o  ■    Hirrptt  v    Losan,  19  Ala.  344. 

"But  as  a  riady  Intimated,  a  distinction  is  to  be  taken  between  expenses 
inciuTc^lonlv  in  procuring  a  dissolution  of  an  injunction,  and  such  as  are 
incurred  in  the  defense  of  an  action,  to  which  the  injunction  is  merely  auxil- 
inrv  qnd  is  not  esseutiul  to  the  relief  sought. 

''WhUear  already  stated,  we  regard  the  expenses,  including  reasonable 
attorney  fees  necessarily  incurred  in  procuring  a  dissolution  of  an  injunction 
wi-on^?ully  i^antS!  as  recoverable  in  an  action  on  the  undertaking,  wben  it  is 
naUv  decKled  that  it  ought  not  to  have  been  granted,  we  are  equally  c  eai 
tha^^ths  cannot  be  done  when  the  expenditure  or  liability  is  incurred  in 
drfendiic-  an  action  to  which  the  injunction  is  only  ancillary  and  not  essen- 
t^l^otSe  relief  sought  by  the  action:  for  it  could  not  then  be  regarded  as 
dnnvio-e  sustained  'by  reason  of  the  injunction.'  ,.,.,.  ,     4.1  :„ 

'The  true  rule  would  seem  to  be,  under  an  undertaking  like  the  one  In  this 
case  that  where  reasonable  attorney  fees  and  expenses  are  necessarily  in- 
cu-red  alone  in  procuring  the  dissolution  of  an  injunction,  when  it  is  the  sole 
S  sou  "ht  by  the  action  or  is  merely  ancillary  thereto,  and  it  is  fanally 
decided  tuit  it  should  not  have  been  granted,  such  fees  and  expenses  may  be 
reSvSel  11  an  action  on  the  undertaking;  but  where  the  injunc  ion  is  only 
auxnSry  o  the  object  of  the  action,  and  the  liability  is  incurred  m  defe:lt- 
fn'^the  action  and  the  dissolution  of  the  injunction  is  only  incidental  to  the 
result,  no  recovery  can  be  had  on  the  undertaking  for  the  attorney  fees  and 
expenses  occasioned  thereby." 


jw^.  430  COMPENSATORY   DAMAGES.  (Part    5 

STRINGFIELD  et  al.  v.  HIRSCH  et  al. 

(Supreme  Court  of  Tennessee,  1895.     94  Tenn.  425,  29  S.  W.  G09,  45  Am.  St 

Rep.  733.) 

WiivKES,  J.^^  *  *  *  The  first  and  most  important  question  pre- 
sented is,  are  counsel  fees  proper  elements  of  damage  in  cases  where  at- 
tachments and  injunctions  are  wrongfully  sued  out,  and  impounding  or- 
ders wrongfully  obtained?  Upon  this  question  there  is  an  abundance 
of  authority,  and  an  irreconcilable  conflict  of  decisions  in  the  courts 
of  the  several  states  and. the  federal  courts.  In  High  on  Injunctions  it 
is  held  (section  1685)  /mat  according  to  the  great  weight  of  authority, 
reasonable  counsel  feey  incurred  in  procuring  the  dissolution  of  an  in- 
junction are  a  proper  element  of  damages;  the  amount  being  limited 
to  the  fees  paid  for  procuring  the  dissolution,  and  not  for  the  general 
defense  of  the  case/)  This  holding  proceeds  upon  the  idea  that  the  de- 
fendant has  been  compelled  to  employ  counsel  to  rid  himself  of  an  un- 
just restriction  which  the  plaintiff  has  placed  upon  him,  and  hence  such 
fees  will  only  be  allowed  when  motion  is  made  to  dissolve  pending  the 
litigation,  and  before  the  hearing  on  the  merits.  Section  168G.  Again, 
fees  will  not  be  allowed  to  cover  the  entire  expense  of  the  defense, 
but  only  for  such  as  was  incurred  about  the  injunction.  High,  Inj. 
§§  1688-1690.  See,  also,  1  Sedg.  Dam.  §257;  1  Suth.  Dam.  §  85; 
2  Sedg.  Dam.  §§  524,  525;  Beach,  Inj.  §§  203-210.  In  these  text- 
books the  principal  authorities  pro  and  con  are  cited  and  collated.  A 
well-considered  case  holding  the  majority  view  is  Cook  v.  Chapman, 
41  N.  J.  Eq.  152,  2  Atl.  286.  This  rule  thus  stated,  with  minor  modi- 
fications, is  laid  down  in  some  26  states  of  the  Union ;  among  them, 
the  following:  Alabama,  California,  Colorado,  Florida,  Georgia,  Il- 
linois, Indiana,  Kansas,  Kentucky,  Louisiana,  Michigan,  Minnesota, 
Missouri,  Montana,  Nevada,  New  Hampshire,  New  Jersey,  New  York, 
Ohio,  Virginia,  and  West  Virginia.  In  some  of  these  states  the  matter 
is  regulated  by  statute,  as  in  Iowa,  Mississippi,  and  Washington.  But 
the  rule  is  held  otherwise  in  Arkansas,  Maryland,  North  Carolina, 
Oregon,  Pennsylvania,  South  Carolina,  South  Dakota,  Texas,  and 
Vermont,  and  is  settled  by  neither  statute  nor  decision  in  Connecticut, 
Massachusetts,  North  Dakota,  and  Rhode  Island,  so  far  as  we  have 
been  able  to  ascertain.  In  the  United  States  Supreme  Court  and  in  the 
federal  courts,  such  fees  are  not  allowed.  The  case  of  Oelrichs  v. 
Williams,  15  Wall.  211,  21  L.  Ed.  43,  sets  forth  the  holding  of  the  Su- 
preme Court  of  the  United  States  in  a  case  very  similar  to  the  one  at 
bar.     *     *     * 

It  is  insisted  that  the  cases  of  Davenport  v.  Harbert,  1  Leg.  Rep.  173, 
and  Oelrichs  v.  Williams,  15  Wall.  211,  21  L.  Ed.  43,  are  not  exactly 
similar  to  the  case  at  bar,  inasmuch  as  they  do  not  show  that  the  fees 
claimed  in  those  cases  were  properly  fees  incurred  about  the  injunc- 

•»  Part:  of  tlie  opinion  is  omitted. 


Ch.  1)  EXPENSES   INCURRED.  431 

tions  alone,  and  not  in  the  general  defense  of  the  cases,  and  this  criti- 
cism is  just,  so  far  as  we  can  see,  from  the  meager  reports  of  these 
cases;  but  at  last  the  question,  if  not  settled  by  these  cases  on  anal- 
ogies, is  one  of  broad  public  policy,  and  should  be  settled  in  accord- 
ance with  the  general  trend  of  our  decisions  in  similar  cases,  and  with 
the  wisest  public  policy.  It  is  difficult  to  see  upon  what  ground  counsel 
fees  incurred  by  the  adverse  party  should  be  charged  up  to  the  de- 
feated party  any  more  in  attachment  and  injunction  cases  than  in  other 
litigations,  upon  contracts  or  for  damages  for  torts.  The  litigation 
may  be  equally  unjust  and  oppressive  in  other  cases  as  in  the  case  of 
attachments  and  injunctions.  It  is  true,  the  latter  cases  are  in  some  re- 
spects more  summary,  and  may  entail  damages  arising  out  of  the  seiz- 
ure of  defendant's  property,  but  all  this  is  provided  for  by  the  terms 
of  the  bond  required  to  cover  damages  sustained.  But  counsel  fees 
are  as  necessary  in  the  one  class  of  cases  as  in  the  other,  and  are  nei- 
ther peculiar  nor  mor^  onerous  in  cases  of  attachments  and  injunctions 
than  in  other  cases,  (it  is  said  that  additional  fees  are  required  to  re- 
move the  attachment  and  injunction,  and  relieve  from  the  impounding 
orders ;  but  this  is  more  imaginary  than  real,  as  the  attention  neces- 
sary to  protect  and  guard  against  the  injunction  or  attachment  is  in 
a  vast  majority,  if  not  all,  of  the  cases  merely  incidental  to  the  de- 
fense upon  the  merits,  and  it  is  practically  impossible  to  distinguish 
between  services  rendered  about  the  attachment  or  injunction,  and 
those  about  the  defense  of  the  case  generally.  Any  apportionment  of 
the  fees  between  these  different  services  is  more  or  less  arbitrary  and 
fanciful.  But,  if  it  were  otherwise,  it  is  at  least  but  counsel  fees  of  the 
opposite  party  which  his  adversary  is  called  upon  to  pay.  j 

It  is  said  that  in  attachment  and  injunction  cases  a  bond  is  required, 
the  conditions  of  w^iich  are  to  pay  all  such  damages  as  occur  by  the 
wrongful  suing  out  of  the  writs,  and  that  this  creates,  virtually,  a  con- 
tract on  the  part  of  the  defendant  to  pay  such  damages.  But  we  think 
that  this  is  a  mistaken  view  of  the  office  and  reason  of  the  bond.  The 
liability  for  damages  for  wrongfully  suing  would  be  the  same,  so  far 
as  the  principal  in  the  bond  is  concerned,  whether  the  bond  were  ex- 
ecuted or  not;  and  the  office  of  the  bond  is  not  to  create  or  regulate 
the  liability  of  the  principal,  but  to  bring  in  the  bondsmen,  as  the  se- 
curities of  the  principal,  to  answer  for  such  damages  as  are  proper. 
While  the  liability  of  the  sureties  arises  out  of  the  execution  and  con- 
dition of  the  bond,  the  liability  of  the  principal  in  no  wise  depends  up- 
on the  bond  or  its  conditions.  (yVe  think  that  the  analogies  of  the  law, 
as  well  as  the  soundest  public  policy,  demand  that  counsel  fees  in 
suits  upon  contracts,  or  for  damages  for  torts,  or  upon  attachments  or 
injunctions,  should  not  be  regarded  as  a  proper  element  of  damages, 
even  where  they  are  capable  of  being  apportioned  so  as  to  show  the 
amount  incurred  for  the  attachments  and  injunctions  as  separate  and 
distinct  from  the  other  services  necessary  in  the  case.  )  It  is  not  sound 
public  policy  to  place  a  penalty  on  the  right  to  litigate ;    that  the  de- 


432  COMPENSATORY  DAMAGES.  (Part    5 

feated  party  must  pay  the  fees  of  counsel  for  his  successful  opponent 
in  any  case,  and  especially  since  it  throws  wide  the  doors  of  tempta- 
tion for  the  opposing  party  and  his  counsel  to  swell  the  fees  to  undue 
proportions,  and,  in  cases  of  attachment  and  injunction,  to  apportion 
them  arbitrarily  between  the  fees  pertaining  properly  to  the  attach- 
ment and  injunction  and  those   relating  to  the  merits  of  the  case. 


PHILPOT   et  al.   v.   TAYLOR. 

(Supreme  Court  of  Illinois,  1874.     75  111,  309.) 

BrEESE^  J.^^  This  was  case,  in  the  superior  court  of  Cook  county, 
by  Abner  Taylor,  against  Bryan  Philpot  and  Henry  E.  Pickett,  for 
falsely  pretending  to  be  the  agents  of  plaintiff  to  sell  certain  real  es- 
tate belonging  to  him,  in  the  city  of  Chicago,  and,  under  that  pretense, 
entering  into  a  contract  with  one  Merrill  to  sell  the  premises  to  him, 
which  contract  they  caused  to  be  recorded  in  the  proper  office  in  Cook 
county,  and  to  enforce  which,  Merrill  filed  a  bill  in  chancery  against  the 
plaintiff,  by  means  whereof  plaintiff  was  put  to  great  charges  and  ex- 
penses in  defending  the  same,  and  for  attorney's  fee  on  appeal,  and  for 

printino^  abstracts  and  briefs,  to  his  damage  five  thousand  dollars. 
*     *     * 

(The  rule,  as  found  in  the  text-books,  is,  that  whosoever  does  an  il- 
legal or  wrongful  act  is  answerable  for  all  the  consequences  in  the  or- 
dinary and  natural  course  of  events,  though  these  consequences  be  di- 
rectly brought  about  by  the  intervening  agency  of  others,  provided  the 
intervening  agents  were  set  in  motion  by  the  primary  wrongdoer;  or, 
provided  their  acts,  causing  the  damage,  were  the  necessary  or  legal 
and  natural  consequence  of  the  original  wrongful  act."^ 

Here,  Merrill  was  the  intervening  agent,  who  was  set  in  motion  by 
these    pretended    agents — the    appellants,    the    original    and    primary 

12  iNlcWhorter,  O.  J.,  in  Wittich  v.  O'Neal,  22  Fla.  592  (188G): 

"The  remaining  question  is,  is  a  liability  for  the  payment  of  counsel  fees 
sufficient,  or  must  they  have  been  actually  paid?  Counsel  for  appellee  cites 
us  to  two  cases — Packer  v.  Nevin,  67  N.  Y.  .550,  and  Prader  v.  Grimm,  28  Cal. 
11.  In  the  first  of  these  cases  this  question  was  not  before  the  court.  'A 
preliminary  injunction  was  obtained  and  upon  agreement  of  the  parties  it 
was  ordered  that  the  question  of  defendant's  damages,  if  any,  sustained  by 
reason  of  the  injunction,  be  heard  and  determined,  jointly  with  the  issues  by 
the  referee.  No  evidence  of  damage  of  any  kind  was  given  on  the  trial,  no 
finding  of  facts  was  made  by  the  referee  in  regard  thereto,  nor  were  any  re- 
quests made  to  find.'  The  court  said  'that  it  was  not  imperative  for  the  ref- 
eree to  make  an  allowance  for  counsel  fees  without  proof  of  payment,  or  that 
a  liability  had  been  incurred  thei'efor.'  The  California  case  cited  squarely 
sustains  the  position  of  the  appellee,  but  we  think  the  great  weight  of  authori- 
ty maintains  the  principle  that  a  fixed  liability  is  sufficient  without  actual 
payment." 

See,  also,  Linsley  v.  Bushnell,  15  Conn.  225,  38  Am.  Dec.  79  (1842) ;  Steven- 
son V.  Morris,  37  Ohio  St.  10,  41  Am.  Dec.  481  (1881) ;  Howell  v.  Scoggins,  48 
Cal.  3.55  (1874) ;    Vorse  v.  Phillips,  37  Iowa,  428  (1873). 

13  Part  of  the  opinion  is  omitted. 


Ch.  1)  (P'^.'^'^BXPENSES    INCtRRED.  433 

wrongdoers.  Had  they  not  given  the  contract,  there  would  have  been 
no  chancery  suit,  by  Merrill,  to  compel  performance.  A  case  is  re- 
ferred to  from  30  Law  Journal,  Queen's  Bench,  137,  Dixon  v.  Four- 
coy,  where  it  was  held,  if  the  natural  result  of  a  wrongful  act,  commit- 
ted by  a  defendant,  has  been  to  plunge  the  plaintiff  into  a  chancery 
suit,  and  thereby  to  cause  him  to  incur  costs  and  expenses,  whatever 
may  be  the  event  of  the  suit,  there  is  that  conjunction  of  wrong  and 
damage  which  will  give  the  plaintiff  good  cause  of  action.     *     *     * 

To  the  same  effect  is  Himes  v.  Keighblingher,  14  111.  4G9.  Here, 
as  in  that  case,  the  declaration  counts  upon  a  malfeasance,  for  an  af- 
firmative wrongful  act.  It  is  for  the  tortious  act  of  defendants,  and  to 
recover  for  the  trouble  and  expenses  necessarily  incurred  to  get  rid  of 
the  effects  of  this  audacious  act.  It  cannot  be  said  these  expenses  were 
not  the  reasonable  result  of  defendants'  conduct.     *     *     * 


BAXENDALE  et  al.  v.  LONDON,  C.  &  D.  RY.  CO. 

(Court  of  Exchequer,  1S74.     L.  R.   10  Exch.  35.) 

Lord  Coleridge,  C.  J.  In  this  case  a  claim  is  made  against  the  de- 
fendants for  the  costs  incurred  by  the  plaintiffs  of  an  unsuccessful  de- 
fence offered  by  them  to  an  action  brought  against  them  by  one  Hard- 
ing. It  appears  that  the  plaintiffs  contracted  with  Harding  to  send 
two  pictures  for  him  irom  London  to  Paris;  and  that  afterwards,  by 
a  separate  and  independent  contract,  the  defendants  agreed  with  the 
plaintiffs  to  carry  the  pictures.  In  the  course  of  transit,  through  the 
defendants'  negligence,  the  pictures  fell  into  the  sea  and  were  dam- 
aged. Harding  thereupon  brought  an  action  against  the  plaintiffs, 
who  took  legal  advice,  and  were  told,  and  rightly  told,  that  they  had 
no  defence.  The  plaintiff's  communicated  this  fact  to  the  defend- 
ants, and  a  long  correspondence  ensued,  the  substance  of  which  was 
that  the  defendants  said  to  the  plaintiffs:  "Take  your  own  course  in 
Harding's  action.  We  will  have  nothing  to  do  with  it.  When  the 
time  comes  for  you  to  attack  us  we  shall  defend  ourselves."  The  plain- 
tiffs, however,  persisted  in  defending  Harding's  action,  and  it  went  to 
trial.  The  plaintiffs  were  defeated,  and  then  commenced  this  action, 
in  which  they  sought  to  recover  from  the  defendants,  not  only  the 
damages  assessed  by  the  jury  as  the  value  of  the  pictures,  but  also  the 
costs  of  their  unsuccessful  defence.  The  defendants  paid  the  damages 
for  the  injury  to  the  pictures  into  court,  and  denied  any  further  lia- 
bility. The  Court  of  Exchequer  have  decided  upon  the  authority  of 
Mors  le  Blanch  v.  Wilson,  Law  Rep.  8  C.  P.  227,  that  they  are  liable 
to  those  costs,  or,  at  all  events,  to  so  much  of  them  as  were  incurred 
by  the  plaintiffs  in  ascertaining  the  amount  of  their  liability  to  Hard- 
ing, and  in  relation  to  the  defence  of  the  Carriers  Act.  I  am  of  opin- 
ion that  this  decision  is  erroneous.  The  defence  was  not  in  my  judg"- 
Gilb.Dam.— 28 


434  COMPENSATORY   DAMAGES.  (Part    5 

ment,  a  reasonable  defence.  It  was  without  any  foundation  in  law, 
and  there  was  no  authority  from  the  defendants,  either  express  or 
implied,  to  set  it  up. 

This,  however,  does  not  dispose  of  the  whole  of  the  plaintiffs'  claim. 
For  it  may  be  said:  "True,  the  defence  was  ill-advised  and  unau- 
thorized ;  still  the  plaintiffs  were  obliged  to  do  something  to  ascer- 
tain their  liability,  and  they  at  least  are  entitled  to  such  an  amount  of 
costs  as  they  would  have  incurred  had  they  allowed  judgment  to  go 
by  default,  upon  a  writ  of  inquiry."  But  I  think  this  contention  fails 
also,  because  it  seems  to  me  that  the  whole  of  the  costs  were  incurred 
for  the  plaintiffs'  own  benefit,  and  were  not  in  any  sense  the  natural 
and  proximate  result  of  the  defendants'  breach  of  duty.  The  judg- 
ment, therefore,  must  be  reversed.  It  appears  to  have  proceeded  whol- 
ly upon  the  case  of  Mors  le  Blanch  v.  Wilson,  Law  Rep.  8  C.  P.  227, 
which  is  certainly  very  like  this  case,  and  which,  if  necessary,  should 
in  my  opinion  be  overruled.^* 

1*  Only  the  opinion  of  Lord  Coleridfre,  C  J.,  is  here  given. 

See,  also,  Fisher  v.  Val  de  leavers  Asphalt  Co.,  L.  R.  1  C.  P.  Div.  511 
(187G).  and  Hammond  v.  Busse.v,  L.  R.  20  Q.  B.  Div.  79  (18S7). 

Bovill,  C.  J.,  in  Mors  le  Blanch  v.  Wilson.  L.  R.  8  C.  P.  227  (1873),  an  action 
brought  to  recover  costs  incurred  in  defending  a  suit  in  which  the  plaintiffs 
were  liable  because  of  the  present  defendants'  default: 

"Upon  the  first  point  raised  in  this  case,  viz.,  the  plaintiffs'  right  to  re- 
cover the  costs  incurred  by  them  in  the  action  brought  against  them  by  the 
owner  of  the  Majestic,  it  seems  to  me  that  the  proper  question  was  left  to 
the  .iury  by  my  Brother  Brett,  viz.,  whether  it  was  a  reasonable  thing  for  the 
plaintiffs  to  defend  that  action,  and  whether  the  defence  was  conducted  in  a 
reasonable  manner.  This  question  is  constantly  arising  in  a  variety  of  forms. 
A  party  is  frequently  put  to  considerable  difficulty  where  the  action  is  brought 
for  unliquidated  damages.  As  a  general  rule,  he  must  not  recklessly  defend 
the  action,  and  so  heap  upon  the  person  eventually  liable  unnecessary  expense. 
But,  on  the  other  hand,  if  he  places  all  the  facts  before  the  person  whom 
he  seeks  to  charge,  and  that  person  declines  to  intervene,  and  leaves  him  to 
take  his  own  course,  it  surely  must  be  for  the  jury  to  say  whether  it  was 
reasonable  to  defend,  and  whether  the  defence  was  conducted  in  a  reasonable 
manner.  I  do  not  see  what  other  question  could  be  left;  and  we  have  the 
authority  of  Parke,  B.,  in  Tindall  v.  Bell,  11  M.  &  W.  228,  at  page  231,  for 
saying  that  it  is  the  only  proper  question.  If,  under  the  circumstances,  it 
would  have  been  more  prudent  to  settle  the  claim  by  a  compromise,  or  to  pay 
money  into  court,  or  to  allow  judgment  to  go  by  default,  that  would  have  af- 
forded topics  for  observation  and  comment:  but  it  must  at  last  be  left  to  the 
jurv;   the  judge  could  not  take  upon  himself  to  decide  it  as  a  matter  of  law." 

See.  also,  Broom  v.  Hall,  7  C.  B.  (N.  S.)  503  (1859) ;  Attorney  General  v. 
Tomline,  5  Ch.  Div.  750  (1877) ;  Pow  v.  Davis,  1  Best.  &  S.  220  (1861) ;  Hol- 
loway  V.  Turner,  6  Q.  B.  928  (1845). 

Martin,  B.,  in  Howard  v.  Lovegrove,  L.  R.  6  Exch.  43  (1870),  an  action 
against  the  assignee  of  a  lease  upon  an  agreement  to  indemnify  the  lessee 
against  a  failure  to  perform  the  covenants  of  the  lease,  brought  to  recover 
costs  incurred  in  an  unsuccessful  defense  by  the  lessee  in  a  suit  brought 
against  him  by  the  lessor: 

"It  is  admitted  that  the  plaintiff  ought  to  recover  the  costs  of  the  action 
brought  against  him  by  the  landlord,  and  the  question  is  what  are  these  costs? 
I  should  say  that  they  include  everything  which  his  attorney  could  recover 
against  him.  To  give  him  the  mere  costs  as  taxed  by  the  master,  who  acts 
according  to  a  particular  scale,  would  not  be  a  complete  indemnification.  T 
was  of  this  opinion  at  the  trial,  and  I  see  no  reason  to  alter  it.  It  is  not.  in 
tny  opinion,  the  duty  of  the  judge  in  such  a  case  to  tell  the  jury  that  as  a 


Ch.  1)  EXPENSES    INCURRED.  435 


INHABITANTS  OF  WESTFIELD  v.  MAYO. 

(Supreme   Judicial    Court   of    Massacliusetts,    1877.     122   Mass.    100,    23   Am. 

Kei).  202.) 

Lord,  J.^^  The  remaining  question  in  this  case  is  whether  the  plain- 
tiff shall  recover  the  amount  paid  as  counsel  fees  in  the  suit  against 
the  town,  which,  it  is  agreed,  are  reasonable,  if  in  law  they  are  to  be 
allowed.  The  defendant  was  notified  by  the  town  of  the  pendency  of 
the  original  suit,  and  was  requested  to  defend  it,  which  he  declined 
to  do. 

The  difficulty  is  not  in  stating  the  rule  of  damages,  but  in  determin- 
ing whether  in  the  particular  case  the  damages  claimed  are  within  the 
rule.  (^Natural  and  necessary  consequences  are  subjects  of  damages; 
remote,  uncertain,  and  contingent  consequences  are  not.)  Whether 
counsel  fees  are  natural  and  necessary  or  remote  and  contingent,  in 
the  particular  case,  we  think  may  be  determined  upon  satisfactory 
principles ;  /and,  as  a  general  rule,  when  a  party  is  called  upon  to  de- 
fend a  suit  founded  upon  a  wrong,  for  which  he  is  held  responsible 
in  law  without  misfeasance  on  his  part,  but  because  of  the  wrongful 
act  of  another,  against  whom  he  has  a  remedy  over,  counsel  fees  are 
the  natural  and  reasonably  necessary  consequence  of  the  wrongful  act 
of  the  other,  if  he  has  notified  the  other  to  appear  and  defend  the 
suit.^  When,  however,  the  claim  against  him  is  upon  his  own  contract, 
or  for  his  own  misfeasance,  though  he  may  have  a  remedy  against 
another,  and  the  damages  recoverable  may  be  the  same  as  the  amoimt 
of  the  judgment  recovered  against  himself,  counsel  fees  paid  in  de- 
fense of  the  suit  against  himself  are  not  recoverable. 

The  decision  in  Reggio  v.  Braggiotti,  7  Cush.  166,  is  adverse  to 
the  allowance  of  counsel  fees,  as  falling  within  the  latter  class.  In 
that  case  the  plaintiff  sold  to  Henshaw,  Ward  &  Co.  an  article  with  a 
warranty  that  it  was  known  in  commerce  as  opium,  and  Henshaw. 
Ward  &  Co.  recovered  damages  against  the  plaintiff  upon  his  warran- 
ty. They,  having  made  the  warranty,  were  responsible  for  damages 
resulting  from  the  breach  of  their  own  contract.  The  defendant 
in  that  case  had  made  a  similar  warranty  to  the  plaintiffs,  and  although 
they  were  liable  to  him  upon  that  warranty,  it  was  held  that  they  were 
not  liable  for  counsel  fees  paid  in  defending  their  own  warranty.  Al- 
though the  reasons  for  that  decision,  which  are  very  briefly  given, 
are  not  the  same  which  we  now  assign  in  support  of  it,  the  decision 
itself  is  sustained  by  the  authorities.     *     *     * 

Action  to  recover  the  amount  of  a  judgment  recovered  against  the 
town  by  one  Hanchette  for  injuries  sustained  by  falling  over  a  pile 

inntter  of  law  tlioy  can  pive  notlilns  beyond  the  taxed  costs.  I  must  add  that 
T  think  the  sanio  reasonlntr  would  apply  tn  actions  of  t<>rt.  and  I  am.  thcr.^- 
fore.  unable  to  assent  to  the  principle  of  the  decisions  which  have  been  cited 
to  us." 

15  Part  of  the  opiniou  Is  omitted. 


436  COMPENSATORY  DAMAGES.  (Part    5 

of  brick  carelessly  placed  by  defendant  Mayo  upon  the  highway  in 
front  of  his  premises. 

In  Fisher  v.  Asphalte  Co.,  1  C.  P.  Div.  511  *  *  *  ^  one  Hicks 
sustained  an  injury  by  reason  of  the  defective  condition  of  the  way, 
and  commenced  proceedings  against  the  Metropolitan  Tramway  Com- 
pany for  damages,  and  the  Metropolitan  Tramway  Company  notified 
the  plaintiff,  and  the  plaintiff  notified  the  defendant.  The  defendant 
declined  to  interfere.  The  plaintiff,  however,  took  upon  himself  the 
defense  of  the  suit  against  the  tramway  company,  and  adjusted  it; 
and  the  settlement  was  found  to  be  a  reasonable  and  proper  one.  In 
his  action  against  the  defendant  he  contended  that  his  counsel  fees 
incurred  in  the  previous  proceedings  should  be  added  to  the  amount 
paid  to  Hicks.  Brett  and  Lindley,  JJ.,  in  their  several  opinions,  felt 
themselves  bound  by  the  decision  in  Baxendale  v.  Railway,  L-  R.  10 
Exch.  35,  but  thought  that,  if  they  were  not  precluded  by  that  decision 
they  should  have  great  difficulty  in  refusing  to  allow  counsel  fees  in 
addition  to  the  amount  paid  as  damages;  but  Lord  Coleridge,  C.  J., 
while  holding  that  that  decision  was  conclusive,  was  not  prepared 
to  say  that  it  was  not  right  in  principle.  And  he  uses  this  very  sug- 
gestive language:  "The  tramway  company  contract  with  Fisher; 
Fisher  contracts  with  the  defendants ;  and  the  claim  of  Hicks  arises 
from  negligence  of  the  latter.  Are  the  defendants  to  be  liable  to 
three  sets  of  costs  because  the  actions  may  have  been  reasonably  de- 
fended? If  they  are,  the  consequences  may  be  serious.  If  not,  at 
which  link  of  the  chain  are  the  costs  to  drop  out?" 

Following  this  suggestion,  if,  in  the  case  of  Reggio  v.  Braggiotti. 
there  had  been  ten  successive  sales  instead  of  two,  and  each  with  the 
same  implied  warranty,  and  successive  suits  had  been  brought  by  the 
ten  successive  purchasers,  each  against  his  warrantor,  would  the  first 
seller  be  liable  for  such  accumulation  of  counsel  fees  upon  his  contract 
of  warranty?  If  not,  in  the  pertinent  language  just  quoted,  "at  which 
link  of  the  chain  are  the  costs  to  drop  out"?  In  each  of  these  cases 
it  will  be  observed  that  the  counsel  fees  were  paid  in  defending  a 
suit  upon  the  party's  own  contract. 
^n  the  present  case  the  plaintiff  was  not  compelled  to  incur  the  coun- 
sel fees  by  reason  of  any  misfeasance  or  of  any  contract  of  its  own,, 
but  was  made  immediately  liable  by  reason  of  the  wrongdoing  of  the 
defendant.  There  seems,  therefore,  to  be  no  ground  in  principle  by 
which  it  should  be  precluded  from  recovering  as  part  of  its  damages 
the  expenses  reasonably  and  properly  incurred  in  consequence  of  the 
wrongdoing  of  the  defendant!  Within  this  rule  a  master,  who  is 
immediately  responsible  for  the  wrongful  acts  of  a  servant,  though 
there  is  no  misfeasance  on  his  part,  might  recover  against  such  servant, 
not  only  the  amount  of  the  judgment  recovered  against  him,  but  his 
reasonable  expenses,  including  counsel  fees,  if  notified  to  defend  the 
suit.t  It  may  be  said  in  that  case,  as  in  this,  that  there  may  be  a  techni- 
cal misfeasance,  or  rather  nonfeasance,  in  not  guarding  more  carefully 


^ _,/.»-U^^-M.'*«'^*^  "^^^^     '   ''^*^'   ^^^  jJ ■  UrU*l  H.  L4^,^^  V^  .^  f, 

Ch.  1)  EXPENSES    INCUnUED.  437 

the  conduct  of  the  servant,  or  in  watching  for  obstructions  in  the 
street ;  but  no  negligence  is  necessary  to  be  proved  in  either  case  as 
matter  of  fact ;  the  party  is  directly  liable  because  of  the  wrong  of  an- 
other, whatever  diligence  he  may  have  himself  exercised.  It  does  not. 
however,  apply  to  cases  where  one  is  defending  his  own  wrong  or  his 
own  contract,  although  another  may  be  responsible  to  him.  *  *  * 
(if  a  party  is  obliged  to  defend  against  the  act  of  another,  against 
whom  he  has  a  remedy  over,  and  defends  solely  and  exclusively  the  act 
of  such  other  party,  and  is  compelled  to  defend  no  misfeasance  of  his 
own,  he  may  notify  such  party  of  the  pendency  of  the  suit,  and  may  call 
upon  him  to  defend  it;  if  he  fails  to  defend,  then,  if  liable  over,  he  is 
liable  not  only  for  the  amount  of  damages  recovered,  but  for  all  rea- 
sonable and  necessary  expenses  incurred  in  such  defense.  And  this 
rule,  while  consistent  with  legal  principles,  is  sanctioned  by  the  highest 
equitable  considerations.  If  the  party  ultimately  liable  for  his  exclusive 
wrongdoing  has  notice  that  an  intermediate  party  is  sued  for  the  wrong 
done  by  him,  it  is  right,  legally  and  equitably,  that  he  take  upon  himself 
at  once  the  defense  of  his  own  act,  thereby  settling  the  whole  matter  in 
a  single  suit.  If  he  requires  the  intermediate  party  to  defend,  there  is  no 
rule  of  law  or  of  morals  which  would  relieve  him  from  the  consequen- 
ces of  his  additional  neglect  of  duty.     *     *     * 


ROLPH  V.  GROUCH. 

(Court  of  Exchequer,  1867.     L.  R.  3  Exch.  44.) 

Kelly,  C.  B.^*  I  think  this  case  is  free  from  difficulty.  The  first 
question  is,  as  to  the  right  of  the  plaintiff  to  recover  damages,  costs 
and  expenses,  incurred  by  him  in  defending  an  action  of  trespass 
brought  against  him  by  one  Cook,  who  claimed  under  his  landlord, 
the  now  defendant.  In  order  to  ascertain  if  the  plaintiff  is  entitled  to 
recover,  we  must  look  to  the  covenant  in  the  lease  under  which  he  held 
the  premises,  which  is  as  follows:  "Newton  Crouch  doth  hereby  for 
himself,  his  heirs,  etc.,  covenant  with  Joseph  Rolph,  his  executors,  etc., 
that  he  the  said  Joseph  Rolph,  his  executors,  etc.,  paying  the  rent  here- 
by reserved,  and  performing  the  covenants  hereinbefore  contained, 
shall  and  may  peacably  and  quietly  have,  hold,  use,  occupy  and  enjoy, 
the  premises  hereby  demised,  with  their  appurtenances,  during  the 
term  hereby  granted,  without  any  interruption  whatsoever  from  and  by 
the  said  Newton  Crouch,  or  his  executors,  etc.,  or  any  other  person  or 
persons  lawfully  claiming  by,  from,  or  under  him  or  them."  Now, 
Cook,  being  a  person  claiming  under  the  defendant,  this  covenant 
secures  the  plaintiff  from  interruption  by  Cook.  Then  we  have  next 
to  inquire  whether  the  conduct  of  Cook  caused  a  breach  of  this  cove- 

18  Part  of  the  opinion  is  omitted. 


438  COMPENSATORY  DAMAGES.  (Part    5 

nant.  What  occurred  was,  shortly,  this :  Cook  came  to  the  plaintiff, 
and  told  him  that  he  had  no  right  or  title  in  the  premises,  and  no  pow- 
er to  deal  with  them  in  any  way;  and  because  the  plaintiff  had,  in 
fact,  dealt  with  them.  Cook  commenced  an  action  of  trespass  against 
him.  The  plaintiff  set  up  the  best  defense  he  could  to  the  action,  but 
in  the  result  the  verdict  was  against  him,  and  he  became  liable  for  the 
damages  and  costs  of  the  action.  It  is  contended,  that  although  this 
conduct  on  the  part  of  Cook  may  constitute  an  interruption  to  the 
plaintiff's  enjoyment,  and  therefore  may  be  a  breach  of  the  covenant 
in  the  lease,  yet  the  now  plaintiff  had  no  right  to  defend  the  action 
brought  against  him  by  Cook,  and  to  incur  the  costs  he  did  incur.  But, 
applying  our  common  sense  to  the  matter,  how  does  it  stand?  The 
plaintiff  was  in  possession  of  the  premises  under  a  lease  containing 
the  defendant's  covenant.  Then  Cook,  claiming  under  the  defendant, 
interrupts  his  enjoyment.  What  course  was  the  plaintiff  to  adopt? 
He  had  himself  no  knowledge  whether  there  was  a  good  title  in  his 
landlord,  the  now  defendant,  or  not.  The  defendant  alone  knew  that. 
That  being  so,  the  plaintiff  gave  the  defendant  notice  that  the  action 
had  been  brought,  and  by  that  notice,  in  effect,  requested  the  defend- 
ant's direction  as  to  how  to  act.  The  defendant,  however,  remained 
silent,  and  left  the  plaintiff  to  do  as  he  might  think  fit.  I  think  it  was 
the  defendant's  duty  to  have  communicated  with  the  plaintiff,  and 
either  to  have  said,  "I  have  a  good  title,"  or  else,  "I  made  the  lease 
to  you  under  a  mistake.  I  have  no  title;  you  had  better  not  defend 
the  action."  The  defendant,  however,  failed  to  perform  that  duty,  and 
the  plaintiff,  accordingly,  being  left  to  himself,  acted  for  the  best, 
upon  his  own  judgment.  He  acted  bona  fide,  and,  giving  credence  to 
the  defendant's  warranty  that  he  should  quietly  enjoy  the  property. 
Afterwards,  on  the  trial  of  the  action,  it  turned  out  that  the  defendant, 
as  he  must  be  taken  to  have  known  before,  had  no  title  to  give  such  a 
v/arranty.  fUnder  these  circumstances,  I  am  of  opinion  that  the 
plaintiff  was  justified  in  the  course  which  he  took,  and  therefore  that 
the  damages,  costs  and  expenses  which  he  incurred  in  the  action 
brought  against  him  by  Cook,  are  the  natural  and  immediate  conse- 
quence of  the  defendant's  breach  of  covenant!     *     *     *  ^^ 

17  See,  also.   Meservey  v.    Snell,  94  Iowa,  222,  62  N.   W.   767,  58  Am.   St 
Rep.  391  (1895),  and  Ryerson  v.  Chapman,  66  Me.  557  (1877). 


Qh.  2)  NONl'ECUNIAUY   LOSSES.  ^^^ 


CHAPTER  II. 
NONPECUNIARY  LOSSES. 


SECTION  1.— PHYSICAL  PAIN. 


GOODHART  v.   PENNSYLVANIA  R.   CO. 

(Supreme  Court  of  Pennsylvania,  1896.     177  Pa.  1.  35  Atl.  191,  55  Am.  St. 

Rep.  705.) 

Williams,  J."  The  plaintiff  received  the  injury  complained  of 
while  a  passenger  on  one  of  the  trains  of  the  defendant  company 
*  *  *  Damages  for  a  personal  injury  consist  of  three  principal 
items-  First,  the  expenses  to  which  the  injured  person  is  subjected 
by  reason  of  the  injury  complained  of;  second,  the  inconvenience  and 
suffering  naturally  resulting  from  it ;  third,  the  loss  of  earnmg  pow- 
er if  any,  and  whether  temporary  or  permanent,  consequent  upon  the 
character'  of  the  injury.    Owens  v.  Railway  Co.,  155  Pa.  334,  26  Atl. 

74S 

The  expenses  for  which  a  plaintiff  may  recover  must  be  such  as  have 
been  actually  paid,  or  such  as,  in  the  judgment  of  the  jury,  are  reason- 
ably necessary  to  be  incurred.     The  plaintiff  cannot  recover  for  the 
nursing  and  attendance  of  the  members  of  his  own  household,  unless 
they  are  hired  servants.    The  care  of  his  wife  and  mmor  children  m 
ministering  to  his  needs  involves  the  performance  of  the  ordmary 
offices  of  affection,  which  is  their  duty;    but  it  involves  no  legal  lia- 
bility on  his  part,  and  therefore  affords  no  basis  for  a  claim  against  a 
defendant  for  expenses  incurred.    A  man  may  hire  his  own  adult  chil- 
dren to  work  for  him  in  the  same  manner  and  with  same  effect  that 
he  may  hire  other  persons,  but,  in  the  absence  of  an  express  contract, 
the  law  will  not  presume  one,  so  long  as  the  family  relation  continues. 
Pain  and  suffering  are  not  capable  of  being  exactly  measured  by  an 
equivalent  in  money,  and  we  have  repeatedly  said  that  they  have  no 
market  price.    The  question  in  any  given  case  is  not  what  it  would  cost 
to  hire  some  one  to  undergo  the  measure  of  pain  alleged  to  have  been 
suffered  by  the  plaintiff,  but  what,  under  all  the  circumstances,  should 
be  allowed  the  plaintiff  in  addition  to  the  other  items  of  damage  to 
which  he  is  entitled,  in  consideration  of  suffering  necessarily  endured. 
Baker  v.  Pennsylvania  Co.,  142  Pa.  503,  21  Atl.  979,  12  L.  R.  A   698. 
This  should  not  be  estimated  by  a  sentimental  or  fanciful  standard,  but 
in  a  reasonable  manner,  as  it  is  wholly  additional  to  a  pecuniary  com- 

iPart  of  the  opinion  is  omitted. 


4:40  COMPENSATORY  DAMAGES.  (Part    5 

pensation  afforded  by  the  first  and  third  items  that  enter  into  the 
amount  of  the  verdict  in  such  cases. 

By  way  of  ilkistration,  let  us  assume  that  a  plaintiff  has  been  wholly 
disabled  from  labor  for  a  period  of  20  days  in  consequence  of  an  injury 
resulting  from  the  negligence  of  another.  This  lost  time  is  capable 
of  exact  compensation.  It  will  require  so  much  money  as  the  injured 
man  might  have  reasonably  earned  in  the  same  time  by  the  pursuit 
of  his  ordinary  calling.  But  let  us  further  assume  that  these  days  of 
enforced  idleness  have  been  days  of  severe  bodily  suffering.  The  ques- 
tion then  presented  for  the  consideration  of  the  jury  would  be:  What 
is  it  reasonable  to  add  to  the  value  of  the  lost  time  in  view  of  the  fact 
that  the  days  were  filled  with  pain,  instead  of  being  devoted  to  labor? 
Some  allowance  has  been  held  to  be  proper;  but,  in  answer  to  the 
question,  "How  much?"  the  only  reply  yet  made  is  that  it  should  be 
reasonable  in  amount. 

[^  Pain  cannot  be  measured  in  money.  It  is  a  circumstance,  however, 
that  may  be  taken  into  the  account  in  fixing  the  allowance  that  should 
be  made  to  an  injured  party  by  way  of  damages.]  An  instruction  that 
leaves  the  jury  to  regard  it  as  an  independent  item  of  damages,  to  be 
compensated  by  a  sum  of  money  that  may  be  regarded  as  a  pecuniary 
equivalent,  is  not  only  inexact,  but  it  is  erroneous.  The  word  "com- 
pensation," in  the  phrase  "compensation  for  pain  and  suffering,"  is 
not  to  be  understood  as  meaning  price  or  value,  but  as  describing  an 
allowance  looking  towards  recompense  for  or  made  because  of  the 
suffering  consequent  upon  the  injury.  /In  computing  the  damages  sus- 
tained by  an  injured  person,  therefore,  the  calculation  may  include  not 
only  loss  of  time  and  loss  of  earning  power,  but,  in  a  proper  case,  an 
allowance  because  of  suffering. ) 

The  third  item,  the  loss  of  earning  power,  is  not  always  easy  of  cal- 
culation. It  involves  an  inquiry  into  the  value  of  the  labor,  physical 
or  intellectual,  of  the  person  injured,  before  the  accident  happened  to 
him,  and  the  ability  of  the  same  person  to  earn  money  by  labor,  physic- 
al or  intellectual,  after  the  injury  was  received.  Profits  derived  from 
an  investment  or  the  management  of  a  business  enterprise  are  not 
earnings.  The  deduction  from  such  profits  of  the  legal  rate  of  interest 
on  the  money  employed  does  not  give  to  the  balance  of  the  profits  the 
character  of  earnings.  The  word  "earnings"  means  the  fruit  or  re- 
ward of  labor;  the  price  of  services  performed.  And.  Law  Diet.  390. 
Profits  represent  the  net  gain  made  from  an  investment,  or  from  the 
prosecution  of  some  business,  after  the  payment  of  all  expenses  in- 
curred. The  net  gain  depends  largely  on  other  circumstances  than 
the  earning  capacity  of  the  persons  managing  the  business.  The  size 
and  location  of  the  town  selected,  the  character  of  the  commodities 
dealt  in,  the  degree  of  competition  encountered,  the  measure  of  pros- 
perity enjoyed  by  the  community,  may  make  an  enterprise  a  decided 
success,  which  under  less  favorable  circumstances,  in  the  hands  of  the 
same  persons,  might  turn  out  a  failure.    The  profits  of  a  business  with 


Ch.  2)  PHYSICAL    PAIN.  441 

which  one  is  connected  cannot,  therefore,  be  made  use  of  as  a  measure 
of  his  earning  power.^uch  evidence  may  tend  to  show  the  possession 
of  business  quahties,  but  it  does  not  fix  their  value.  Its  admission  for 
that  purpose  was  error. 

It  was  also  error  to  treat  this  subject  of  the  value  of  earning  power 
as  one  to  be  settled  by  expert  testimony.  An  expert  in  banking  or 
merchandizing  might  form  an  opinion  about  what  a  man  possessing 
given  business  qualifications  ought  to  be  able  to  earn,  but  this  is  not 
the  question  the  jury  is  to  determine.  They  are  interested  only  in 
knowing  what  he  did  actually  earn,  or  what  his  services  were  reason- 
ably worth,  prior  to  the  time  of  his  injury,  (in  settling  this  question, 
they  should  consider  not  only  his  past  earnings,  or  the  fair  value  of 
services  such  as  he  was  able  to  render,  but  his  age,  state  of  health, 
business  habits,  and  manner  of  living.N  *     *     * 

Another  subject  requires  consideration.  The  verdict  rendered  by 
the  jury  gives  the  calculation  upon  which  the  enormous  sum  awarded 
to  the  plaintiff  was  based.  From  this  it  appears  that  the  sum  of  $19,- 
526.50  was  given  as  the  cost  of  an  annuity  of  $1,750  per  annum  for  19 
years.  This  calculation  assumes  (1)  that  the  plaintiff's  earning  power 
was  nearly  twice  as  great  as  he  had  himself  offered  it  for  to  the  com- 
pany whose  president  and  manager  he  was.  It  assumes  (2)  that  he 
had  a  reasonable  expectation  of  life  for  19  years,  being  at  the  time  of 
the  trial  about  53  years  old.  It  assumes  (3)  that  his  earning  power, 
instead  of  steadily  decreasing  with  increasing  years,  would  hold  up  at 
its  maximum  to  the  very  end  of  life.  It  assumes,  in  the  fourth  place, 
that  he  is  entitled  to  recover,  not  only  the  present  worth  of  his  future 
earnings,  as  the  jury  has  estimated  them,  but  a  sufficient  sum  to  enable 
him  to  go  out  into  the  market,  and  purchase  an  annuity  now,  equal 
to  his  estimated  earnings. 

rThe  first,  second,  and  third  of  these  are  assumptions  of  fact.  The 
fourth  is  an  assumption  of  law,  and  is  clearly  wrong.  When  future 
payments  are  to  be  anticipated  and  capitalized  in  a  verdict,  the  plain- 
tiff is  entitled  only  to  their  present  worth.  This  is  the  exact  equivalent 
of  the  anticipated  sums.  \*     *     *  ^ 

~  Physical  pain  has  always  been  a  compensable  element  of  damage.  The 
subject  does  not  admit,  however,  of  a  definite  measure  of  compensation,  but 
the  assessment  therefor  is  left  to  "the  srood  sense  and  unbiased  judgment  of 
the  jury."  I.  C.  R.  R.  Co.  v.  Barron,  5  Wall.  90,  18  L.  Ed.  591  (1866) ;  Aldrich 
V.  rainier,  24  Cal.  513  (1864);  Stafford  v.  Citv  of  Oskaloosa,  64  Iowa,  251, 
20  N.  \Y.  174  (1884);  P.  R.  R.  Co.  v.  Allen,  .53  Pa.  270  (1867);  Phillips  v.  S. 
W.  R.  R.  Co.,  4  Q.  B.  Div.  406  (1879).  ante,  p.  74;  Hamlin  v.  G.  N.  R.  R. 
Co.,  1  Hurl.  &  N.  408  (1856).  ante,  p.  64;  Ransom  v.  N.  Y.  &  E.  R.  R.  Co., 
15  N.  Y.  415  (1857),  ante,  p.  65. 


442  COMPENSATORY  DAMAGES.  (Part    5 

SECTION  2.— INCONVENIENCE. 


BALTIMORE  &  P.  R.  CO.  v.  FIFTH  BAPTIST  CHURCH. 

(Supreme  Court  of  United  States,  1&S3.     108  U.  S.  317,  2  Sup.  Ct.  719,  27  L. 

Ed.  739.) 

The  plaintiff  alleges  that  the  defendant,  in  1874,  erected  an  engine 
house  and  machine  shop  on  a  parcel  of  land  immediately  adjoining  its 
church  edifice,  and  has  since  used  them  in  such  a  way  as  to  disturb, 
on  Sundays  and  other  days,  the  congregation  assembled  in  the  church, 
to  interfere  with  religious  exercises  therein,  break  up  its  Sunday 
schools,  and  destroy  the  value  of  the  building  as  a  place  of  public 
worship.  It  therefore  brought  the  present  suit  in  the  Supreme  Court 
of  the  district  for  the  damages  it  had  sustained. 

Field,  j.s  *  *  *  Plainly  the  engine  house  and  repair  shop,  as 
they  were  used  by  the  railroad  company,  were  a  nuisance  in  every 
sense  of  the  term.  They  interfered  with  the  enjoyment  of  property 
which  was  acquired  by  the  plaintiff  long  before  they  were  built,  and 
was  held  as  a  place  for  religious  exercises,  for  prayer  and  worship ; 
and  they  disturbed  and  annoyed  the  congregation  and  Sunday  school 
which  assembled  there  on  the  Sabbath  and  on  different  evenings  of 
the  week.  (That  is  a  nuisance  which  annoys  and  disturbs  one  in  the 
possession  of  his  property,  rendering  its  ordinary  use  or  occupation 
physically  uncomfortable  to  him.  For  such  annoyance  and  discomfort 
the  courts  of  law  will  afford  redress  by  giving  damages  against  the 
wrong  doer,  and  when  the  cause  of  the  annoyance  and  discomfort  are 
continuous,  courts  of  equity  will  interfere  and  restrain  the  nuisancer 
Crump  V.  Lambert,  L.  R.  3  Eq.  409. 

The  right  of  the  plaintiff  to  recover  for  the  annoyance  and  discom- 
fort to  its  members  in  the  use  of  its  property,  and  the  liability  of  the 
defendant  to  respond  in  damages  for  causing  them,  are  not  affected 
by  their  corporate  character.     *     *     ♦ 

Mere  depreciation  of  the  property  was  not  the  only  element  for 
consideration.  That  might,  indeed,  be  entirely  disregarded.  The 
plaintiff  was  entitled  to  recover  because  of  the  inconvenience  and  dis- 
comfort caused  to  the  congregation  assembled,  thus  necessarily  tend- 
ing to  destroy  the  use  of  the  building  for  the  purposes  for  which  it  was 
erected  and  dedicated.  ;  The  property  might  not  be  depreciated  in  its 
salable  or  market  value,  if  the  building  had  been  entirely  closed  for 
those  purposes  by  the  noise,  smoke,  and  odors  of  the  defendant's 
shopsj  It  might  then,  perhaps,  have  brought  in  the  market  as  great 
a  price  to  be  used  for  some  other  purpose.     But,  as  the  court  below 

3  Part  of  the  opinion  is  omitted. 


^CSiM^ 


Ch.  2)    rl    U'  .-'■'   '  •    '    "^  INCONVENIENCE.  "^  >^^>-^  \^,^-J>^*%4S^  ^ ')r^  * 

very  properly  said  to  the  jury,  the  congref^ation  had  the  same  right  to  -«- -v*. 4-*-v^* .. 
the  comfortable  enjoyment  of  its  house  for  church  purposes  that  a'-^-^'-*-^*'*- 
private  gentleman  has  to  the  comfortable  enjoyment  of  his  own  house,  ""-"^  -^^crv 
and  it  is  the  discomfort  and  annoyance  in  its  use  for  those  purposes' * '^^'J  ^^ 
which  is  the  primary  consideration  in  allowing  damages.  As  with  a^  ^  1 ' 
blow  on  the  face,  there  may  be  no  arithmetical  rule  for  the  estimate  "^  ^■♦"'vwvv^^ 
of  damages.  There  is,  however,  an  injury,  the  extent  of  which  the 
jury  may  measure.     *     *     * 


TURNER  v.  GREAT  NORTHERN  RY.  CO. 

(Supreme  Court  of  Washington,  1896.    15  Wash.  213,  46  Pac.  243,  55  Am.  St. 

Rep,  883.) 

The  plaintiff  and  his  wife  purchased  through  tickets  from  St.  Paul, 
Minn,,  to  Spokane,  Wash,,  over  the  defendant  company's  road,  the  lat- 
ter then  knowing  that  through  transportation  was  impossible  over  its 
lines.  At  Havre,  Mont.,  the  plaintiff  was  directed  to  leave  the  train,  to 
proceed  to  Helena,  and  then  to  take  the  road  of  the  Northern  Pacific 
Railroad  Company,  which  company,  the  defendant  stated,  would  honor 
plaintiff's  ticket.  This  it,  however,  refused  to  do.  Plaintiff  was  com- 
pelled to  pay  fare,  and  afterward  was  delayed  at  Missoula  for  18  days 
by  reason  of  floods.    A  verdict  was  rendered  for  $750. 

Anders,  j.*  *  *  *  in  answer  to  the  question,  "Now,  Colonel, 
I  wish  you  would  go  on  and  state  to  the  jury  what,  if  any,  anxiety, 
worriment,  etc.,  you  suffered  on  account  of  your  delay,  being  separated 
from  your  baggage,  and  all  of  those  things  that  are  proper  under  the 
ruling  of  the  court,  in  consequence  of  this  delay,"  the  plaintiff  was 
allowed,  notwithstanding  the  defendant's  objection,  to  testify  that  he 
was  greatly  worried,  troubled,  and  annoyed  by  the  combination  of 
circumstances  surrounding  him  at  that  time,  among  which  were  that 
he  had  to  pay  out  more  money  than  he  had  contemplated  paying  out ; 
that  the  Northern  Pacific  Railroad  Company  would  not  board  him  at 
Missoula,  as  they  did  their  passengers ;  his  means  were  limited,  and 
he  did  not  know  how  long  he  had  to  stay  there;  that  he  could  not 
hear  from  home,  the  telegraph  line  being  broken  down;  that  his  wife 
was  taken  sick,  and  lay  in  bed  three  days,  in  consequence  of  her  worri- 
ment, and  that  he  could  not  make  her  comfortable  under  the  circum- 
stances. Damages  for  "worriment"  and  disappointment  resulting  from 
such  circumstances  are  too  remote  to  be  recovered  in  this  action.  The 
mental  anxiety  of  the  plaintiff  induced  by  the  sickness  of  his  wife  and 
his  inability  to  make  her  comfortable,  or  his  limited  means,  or  his  in- 
ability to  hear  from  home  owing  to  the  interruption  of  telegraphic 
communication,  cannot  be  regarded  as  the  proximate  result  of  the  al- 
leged wrongful  acts,  or  omissions  of  the  defendant,  and  the  court 

4  Part  of  the  opinion  is  omitted,  and  the  statement  of  facts  is  rewritten. 


444  COMPENSATORY  DAMAGES.  (Part    5 

therefore  erred  in  permitting  this  testimony  to  be  submitted  to  the 
consideration  of  the  jury. 

The  court  also  erred,  and  for  the  same  reason,  in  instructing  the 
jury  generally  that  the  plaintiff  was  entitled  to  recover,  for  worry  and 
mental  excitement,  such  sum  as  would  fairly  and  reasonably  compen- 
sate him  therefor.  /Damages  will  not  be  given  for  mere  inconvenience 
and  annoyance  such  as  are  felt  at  every  disappointment  of  one's  ex- 
pectations, if  there  is  no  actual  physical  or  mental  injury.^  1  Sedg. 
Dam.  (8th  Ed.)  §  42.  And  hence  damages  cannot  be  recovered  for 
anxiety  and  suspense  of  mind  in  consequence  of  delay  caused  by  the 
fault  of  a  common  carrier.  Trigg  v.  Railway  Co.,  74  Mo.  147,  41  Am. 
Rep.  305;  Hobbs  v.  Railway  Co.,  L.  R.  10  Q.  B.  Ill;  Hamlin  v.  Rail- 
way Co.,  1  Hurl.  &  N.  408;  Walsh  v.  Railway  Co.,  42  Wis.  23,  24 
Am.  Rep.  376.     *     *     * 

Surely  no  court  could  say  that,  in  contemplation  of  law,  the  mental 
agitation  or  excitement  caused  by  being  delayed  on  a  journey  is  of  a 
different  character  from  that  produced  by  unexpectedly  having  to  pay 
extra  fare  for  transportation./  The  mental  sensation  in  each  case, 
whether  it  be  called  excitement,  anxiety,  annoyance,  or  worry,  is 
manifestly  the  result  of  disappointed  hope  or  expectation  merely,  for 
which,  as  we  have  seen,  no  damages  can  be  awarded.  |*     *     ** 


SECTION   3.— MENTAL  SUFFERING. 
I.  Consequent  upon  Physical,  Injury. 


SEGER  v.  TOWN  OF  BARKHAMSTED. 

(Supreme  Court  of  Errors  of  C!onneeticut,  lSo3.    22  Conn,  290.) 

LThe  plaintiff's  horse  stepped  into  a  hole  on  defendant  municipality's 
bridge,  became  unmanageable,  and  because  of  the  lack  of  a  proper 
railing  fell  off  the  bridge,  by  reason  of  which  the  plaintiff  sustained 
personal  injuries  and  his  horse  and  wagon  were  damaged.\ 

Stores,  j.s  *  *  *  CThe  remaining  question  is,  whether  the  judge 
below  was  correct  in  instructing  the  jury  that,  in  the  assessment  of 
damages,  they  might  consider  the  peril  and  danger  to  which  the  plain- 
tiff was  exposed,  by  the  accident  which  produced  the  injury  complain- 
ed of.  We  think  that  this  part  of  the  charge  was  right.  It  embraced 
the  peril  to  the  person  only  of  the  plaintiff — not  to  his  property.     It 

5  See,  also,  Baltimore  &  O.  R.  R.  v.  Carr,  ante,  p.  67 ;  Jenson  v.  C,  St. 
P.,  M.  &  O.  R.  R.  Co.,  S6  Wis.  589,  57  N.  W.  359,  22  L.  R.  A.  680  (1893); 
D'Orval  v.  Hunt,  Dud.  (S.  C.)  ISO  (1838);  Hobbs  v.  L.  &  S.  W.  Ry.  Co., 
L.  R.  10  Q.  B.  Ill  (1875) ;  Churchill  v.  Burlington  Water  Co.,  94  Iowa,  89, 
62  N.  W.  646  (1895). 

6  Part  of  the  opinion  is  omitted,  and  the  statement  of  facts  is  rewritten. 


Ch.  2)  MENTAL   SUFFERING.  445 

is  not  necessary  to  inquire,  whether  or  how  far,  in  an  action  like  the 
present,  vindictive  or  punitory  damages  are  allowable.  (That  the 
plaintiff  is  entitled  to  be  compensated  for  his  actual  personal  injury, 
there  is,  of  course,  no  question ;  and  that  principle  is  sufficient  to  vin- 
dicate the  charge,  on  this  point.  Such  actual  injury  is  not  confined  to 
the  wounds  and  bruises  upon  his  body,  but  extends  to  his  mental 
suffering^  His  mind  is  no  less  a  part  of  his  person  than  his  body; 
and  the  sliffcrings  of  the  former  are  oftentimes  more  acute  and'  also 
more  lasting  than  those  of  the  latter.  Indeed,  the  sufferings  of  each, 
frequently,  if  not  usually,  act  reciprocally  on  the  other.  The  dismay, 
and  the  consequent  shock  to  the  feelings,  which  is  produced  by  the 
danger  attending  a  personal  injury,  not  only  aggravate  it,  but  are  fre- 
quently so  appalling  as  to  suspend  the  reason  and  disable  a  person  from 
warding  it  off;  and  to  say,  that  it  does  not  enter  into  character  and 
extent  of  the  actual  injury,  and  form  a  part  of  it,  would  be  "an  affront 
to  common  sense."     *     *     * 


MEMPHIS  &  C.  R.  CO.  v.  WHITFIELD. 

(Supreme  Court  of  Mississippi,  1870.    44  Miss.  466,  7  Am.  Rep.  699.) 

Tarbell,  J. 7  *  *  *  Upon  this  branch  of  the  case,  the  inquiry 
here  naturally  arises,  what  are  proper  subjects  of  compensation,  in 
cases  of  injuries  to  the  person,  when  merely  compensatory  damages 
can  be  allowed?  We  answer:  /The  jury  in  estimating  the  damages, 
may  take  into  consideration  the  loss  of  time  and  pecuniary  expense 
consequent  thereupon,  and  also  the  bodily  pain,  or  any  incurable  hurt] 
Pierce,  495 ;  Sedg. ;  Shearman  &  R. ;  Morse  v.  Auburn  &  Syracuse 
R.  R.  Co.,  10  Barb.  (N.  Y.)  621 ;  Curtiss  v.  Rochester  &  Syracuse  R.  R. 
Co.,  20  Barb.  (N.  Y.)  282. 

[In  an  action  for  negligent  injury  to  the  person  of  the  plaintiff,  he 
may  recover  the  expenses  of  his  cure ;  the  value  of  the  time  lost  by 
him  during  the  cure,  and  a  fair  compensation  for  the  physical  and 
mental  suffering  caused  by  the  injury,  as  well  as  for  any  permanent 
reduction  of  his  power  to  earn  money^  Shear.  &  Red.  §  606. 

^he  jury  may  estimate  future  damages  in  the  way  of  loss  of  health, 
and  of  time,  disability  of  limbs  so  as  to  prevent  a  party  from  pursuing 
his  usual  employment ;  bodily  pain  and  suffering,  which  are  proved 
as  reasonably  certain  to  result  from  the  original  injury;  also,  mental 
suffering  may  be  taken  into  consideration,  where  actual  injury  to  the 
person  has  been  sustainecK     *     *     *  » 

T  Part  of  the  opinion  Is  omitted. 

8  See,  also,  I.  &  St.  L.  Co.  v.  Stables,  62  111.  313  (1872),  Tunnlcliffe  v.  Bay  City 
Cou.  Ily.  Co.,  102  Mich.  024,  61  N.  W.  11,  32  L.  R.  A.  142  (1894),  and  Bovee 
V.  Danville.  53  Vt.  100  (ISSO^. 

Taylor,  J.,  in  IlcddU'S  v.  Chicago  &  N.  W.  By.  Co.,  77  Wis.  228,  46  N.  W. 
115,  20  Am.  St.  Rep.  106  (1890),  said: 

"The  first  error  assigned  is  the  instructions  of  the  court  to  the  jury  on  the 


446  COMPENSATORY   DAMAGES.  (Part    5 


11.  Antecedent  to  Physical  Injury. 
LYNCH   V.    KNIGHT. 

(House  of  Lords,  ISGl.     9  H.  L.  Cas.  577.) 

An  action  by  Knight  and  his  wife  to  recover  damages  for  slander- 
ous words  spoken  of  the  wife,  imputing  lack  of  chastity  on  her  part 
prior  to  marriage.  The  special  damage  alleged  was  loss  of  consortium 
by  the  wife  by  reason  of  the  speaking  of  the  words.  The  jury  found  a 
verdict  for  il50.     Reversed. 

Lord  WensIvEYdale  *  [after  holding  that  the  special  damage  averred 
was  not  the  proximate  consequence  of  the  speaking  of  the  slander]. 
Mental  pain  or  anxiety  the  law  cannot  value,  and  does  not  pretend  to 
redress,  when  the  unlawful  act  complained  of  causes  that  alone; 
though  where  a  material  damage  occurs,  and  is  connected  with  it,  it 
is  impossible  a  jury,  in  estimating  it,  should  altogether  overlook  the 
feelings  of  the  party  interested.  For  instance,  where  a  daughter  is 
seduced,  however  deeply  the  feelings  of  the  parent  may  be  affected 
by  the  wicked  act  of  the  seducer,  the  law  gives  no  redress,  unless  the 
daughter  is  also  a  servant,  the  loss  of  whose  service  is  a  material  dam- 
age which  a' jury  has  to  estimate;  when  juries  estimate  that,  they  usu- 
ally cannot  avoid  considering  the  injured  honor  and  wounded  feelings 
of  the  parent.     *     *     *  lo 

question  of  damases.  The  instruction  objected  to  reads  as  follows:  'The 
amount  of  the  damages  which  you  will  assess  is  left  to  your  judgment  and 
discretion,  considering  the  proper  elements  of  damages,  which  are  as  follows: 
Adequate  compensation  for  all  of  the  physical  and  mental  pain  and  suffering 
which  the  plaintiff  suffered  at  the  time  of  the  accident,  which  he  has  suffered 
since  that  time,  and  which  he  is  reasonably  certain  to  suffer  in  the  future, 
by  reason  of  his  injuries;  also  for  the  mortification  and  anguish  of  mind 
which  he  has  suffered,  and  will  in  the  future  suffer,  by  reason  of  the  mutila- 
tion of  his  body,  and  the  fact  that  he  may  become  an  object  of  curiosity  or 
ridicule  among  his  fellows.'  The  learned  coansel  for  the  appellant  take  ex- 
ceptions to  the  use  of  the  words,  'for  the  mortification  and  anguish  of  mind 
which  he  has  suffered,  and  will  suffer  in  the  future,  by  reason  of  the  mutila- 
tion of  his  body,  and  the  fact  that  he  may  become  an  object  of  curiosity 
or  ridicule  among  his  fellows.'  It  is  urged  that  these  words  convey  to  the 
jury  an  idea  different  from  that  conveyed  by  the  words  'mental  pain  and 
suffering'  which  resulted  from  the  injury.  We  think  the  learned  judge  onlj 
used  the  expressions  excepted  to  as  indicative  of  the  causes  from  which  the 
mental  pain  and  suffering  would  be  likely  to  arise  from  the  injury  received. 
There  can  be  no  doubt  that  the  loss  of  the  plaintiff's  limbs  would  naturally, 
cause  mortification  and  anguish  on  the  part  of  the  plaintiff,  and  it  is  also 
quite  certain  that  he  would  be  to  a  considerable  extent  an  object  of  curiosity, 
and  to  the  thoughtless  and  unfeeling  an  object  of  ridicule.  We  think  there 
was  no  error  in  the  instructions  excepted  to." 

9  Part  of  the  opinion  is  omitted,  and  the  statement  of  facts  is  rewritten. 

10  See,  also,  Wyman  v.  Leavitt,  71  Me.  227,  36  Am.  Hep.  303  (1880). 


Ch.  2)  MENTAL    SUFFERINa.  447 

ALLSOP  V.  ALLSOP. 

(Court  of  Exchequer,  18G0.     5  Hurl.  &  N.  534.) 

Declaration.  That,  before  the  committing  of  the  grievances,  the 
said  Hannah  was  the  wife  of  the  plaintiff  Wilham  Allsop;  and  the 
defendant,  on  divers  occasions,  falsely  and  maliciously  spoke  and  pub- 
lished of  the  plaintiff  Hannah  the  wcrds  following  (to  the  effect  that 
he  had  had  carnal  connection  with  her  whilst  she  was  the  wife  of  the 
plaintiff  William  Allsop)  :  "Whereby  the  plaintiff  Hannah  lost  the 
society  of  her  friends  and  neighbors,  and  they  refused  to  and  did  not 
associate  with  her  as  they  otherwise  would  have  done,  and  she  was 
much  injured  in  her  credit  and  reputation,  and  brought  into  public 
scandal  and  disgrace :  and,  by  reason  of  the  committing  of  the  griev- 
ances, the  said  Hannah  became  and  was  ill  and  unwell  for  a  long  time 
unable  to  attend  to  her  necessary  affairs  and  business,  and  the  plain- 
tiff William  Allsop  was  put  to  and  incurred  much  expense  in  and 
about  the  endeavoring  to  cure  her  of  the  illness  which  she  laboured 
under  as  aforesaid  by  reason  of  the  committing  of  the  said  grievances ; 
and  the  said  William  Allsop  lost  the  society  and  association  of  his  said 
wife  for  a  long  time  in  his  domestic  affairs,  which  he  otherwise  would 
have  had." 

Demurrer  and  joinder.^^ 

Bramwkll,  B.  *  *  *  The  question  seems  to  me  one  of  some 
difficulty,  because  a  wrong  is  done  to  the  female  plaintiff'  who  becomes 
ill  and  therefore  there  is  damage  alleged  to  be  flowing  from  the  wrong; 
and  I  think  it  did  in  fact  so  flow.  But  I  am  struck  by  what  has  been 
said  as  to  the  novelty  of  this  declaration,  that  no  such  special  damage 
ever  was  heard  of  as  a  ground  of  action.  If  it  were  so  I  am  at  a  loss 
to  see  why  mental  suffering  should  not  be  so  likewise.  It  is  often 
adverted  to  in  aggravation  of  damages,  as  well  as  pain  of  body.  But 
if  so,  all  slanderous  words  would  be  actionable.  Therefore,  unless 
there  is  a  distinction  between  the  suffering  of  mind  and  the  suffering 
of  body,  this  special  damage  does  not  aft'ord  any  ground  of  action. 
There  is  certainly  no  precedent  for  such  an  action,  probably  because 
the  law  holds  that  bodily  illness  is  not  the  natural  nor  the  ordinary 
consequence  of  the  speaking  of  slanderous  words.  Therefore,  on  the 
ground  that  the  damage  here  alleged  is  not  the  natural  consequence  of 
the  words  spoken  by  the  defendant,  I  think  that  this  action  will  not  lie. 

11  Arguments  of  couusel  and  all  except  a  part  of  the  opiniou  of  BramweJl. 
B.,  are  omitted. 


,CX^T 


448  COMPENSATORY  DAMAGES.  (Part    5 

VICTORIAN  RYS.  COM'RS  v.  COULTAS. 

(House  of  Lords,  1888.     L.  R.  13  App.  Cas.  222.) 

The  plaintiffs,  James  and  Mary  Coultas,  were  driving,  and,  on  com- 
ing to  the  track  of  the  railway,  found  the  gates  closed.  The  gateman 
opened  the  gate  nearest  them  and  they  drove  upon  the  track,  when  they 
saw  an  approaching  train.  James  whipped  up  his  horse,  so  that  he 
managed  to  get  the  buggy  across  and  through  the  farther  gate,  so 
that  the  train  did  not  touch  the  buggy.  It  passed  very  close,  however, 
and  Mary  Coultas  fainted  from  fright.  She  suffered  a  severe  illness 
and  her  nervous  system  was  greatly  shocked.  A  judgment  was  ren- 
dered in  favor  of  the  plaintiffs. 

Sir  Richard  Couch. ^=^  *  *  *  According  to  the  evidence  of  the 
female  plaintiff  her  fright  was  caused  by  seeing  the  train  approaching, 
and  thinking  they  were  going  to  be  killed./  Damages  arising  from  mere 
sudden  terror  unaccompanied  by  any  acmal  physical  injury,  but  oc- 
casioning a  nervous  or  mental  shock,  cannot  under  such  circum- 
stances, their  Lordships  think,  be  considered  a  consequence  which, 
in  the  ordinary  course  of  things,  would  flow  from  the  negligence  of 
the  gate-keeper.  If  it  were  held  that  they  can,  it  appears  to  their 
Lordships  that  it  would  be  extending  the  liability  for  negligence 
much  beyond  what  that  liability  has  hitherto  been  held  to  be.  Not 
only  in  such  a  case  as  the  present,  but  in  every  case  where  an  ac- 
cident caused  by  negligence  had  given  a  person  a  serious  nervous 
shock,  there  might  be  a  claim  for  damages  on  account  of  mental  in- 
jury. The  difficulty  which  now  often  exists  in  case  of  alleged  phys- 
ical injuries  of  determining  whether  they  were  caused  by  the  negli- 
gent act  would  be  greatly  increased,  and  a  wide  field  opened  for  im- 
aginary claims.  The  learned  counsel  for  the  respondents  was  unable 
to  produce  any  decision  of  the  English  courts  in  which,  upon  such 
facts  as  were  proved  in  this  case,  damages  were  recovered.  The  deci- 
sion of  the  Supreme  Court  of  New  York  which  he  referred  to  in  sup- 
port of  his  contention  was  a  case  of  a  palpable  injury  caused  by  a  boy, 
who  was  frightened  by  the  defendant's  violence,  seeking  to  escape 
from  it,  and  is  like  the  case  of  Sneesby  v.  Lancashire  &  Yorkshire 
Railway  Company,  1  Q.  B.  D.  42.  It  is  remarkable  that  no  precedent 
has  been  cited  of  an  action  similar  to  the  present  having  been  main- 
tained or  even  instituted,  and  their  Lordships  decline  to  establish  such 
a  precedent.     *     *     *  13 

12  Part  of  the  opinion  is  omitted,  and  the  statement  of  facts  Is  rewritten. 

13  "Though  the  bodily  injury  may  have  been  very  small,  yet  if  it  was  a 
ground  of  action,  and  caused  mental  suffering  to  the  plaintiff,  that  suffering 
was  a  part  of  the  injury  for  which  he  was  entitled  to  damages." — Metcalf,  J., 
in  Canning  v.  Williamstown,  1  Cush.  (Mass.)  451  (1848). 


7. 


Ch.  2)  MENTAL    SUFFERING.  ^9 


SLOANE  V.  SOUTHERN  CALIFORNIA  RY.  CO. 

(Supreme  Court  of  California,  1890.     Ill  Cal.  GG8,  44  Pac.  320,  32  L.  R.  A. 

193.) 

The  plaintiff,  Anna  L.  Sloane,  purchased  a  ticket  on  the  defendant 
railroad  and  duly  surrendered  it  to  the  conductor,  who  gave  her  no 
check  in  return.  She  was  subsequently  put  off  the  car  by  a  second 
conductor,  who  demanded  a  ticket  or  payment  of  fare.  No  personal 
violence  was  used  toward  her,  and  she  left  the  car  by  the  direction  of 
the  second  conductor. 

Harrison,  J.^*  *  *  ♦  Evidence  was  given  at  the  trial  tending 
to  show  that  Mrs.  Sloane  had  been  previously  subject  to  insomnia,  and 
also  to  nervous  shocks  and  paroxysms,  and  that,  owing  to  her  physical 
condition,  she  was  subject  to  a  recurrence  of  these  shocks  or  nervous 
disorder  if  placed  under  any  great  mental  excitement;  and  that,  by 
reason  of  the  excitement  caused  by  her  exclusion  from  the  car,  there 
had  been  a  recurrence  of  insomnia  and  of  these  paroxysms.     *     *     * 

Counsel  for  the  appellant  has  discussed,  in  his  brief,  the  want  of  lia- 
bility on  the  part  of  the  defendant  for  any  damages  for  mental  suffer- 
ing, and  has  cited  many  authorities  in  support  of  the  proposition  that 
mere  mental  anxiety,  unaccompanied  with  bodily  injury  or  apprehend- 
ed peril,  does  not  afford  a  right  of  action.     *     *     * 

The  real  question  presented  by  the  objections  and  exception  of  the 
appellant  is  whether  the  subsequent  nervous  disturbance  of  the  plaintiff 
was  a  suffering  of  the  body  or  of  the  mind.  The  interdependence  of 
the  mind  and  body  is  in  many  respects  so  close  that  it  is  impossible  to 
distinguish  their  respective  influence  upon  each  other.  It  must  be  con- 
ceded that  a  nervous  shock  or  paroxysm,  or  a  disturbance  of  the  ner- 
vous system,  is  distinct  from  mental  anguish,  and  falls  within  the 
physiological,  rather  than  the  psychological,  branch  of  the  human 
organism.  It  is  a  matter  of  general  knowledge  that  an  attack  of  sud- 
den fright,  or  an  exposure  to  imminent  peril,  has  produced  in  individ- 
uals a  complete  change  in  their  nervous  system,  and  rendered  one  who 
was  physically  strong  and  vigorous  weak  and  timid.  Such  a  result 
must  be  regarded  as  an  injury  to  the  body  rather  than  to  the  mind, 
even  though  the  mind  be  at  the  same  time  injuriously  aft'ected.  What- 
ever may  be  the  influence  by  which  the  nervous  system  is  aft'ected,  its 
action  under  that  influence  is  entirely  distinct  from  the  mental  process 
which  is  set  in  motion  by  the  brain.  The  nerves  and  nerve  centers  of 
the  body  are  a  part  of  the  physical  system,  and  are  not  only  susceptible 
of  lesion  from  external  causes,  but  are  also  liable  to  be  weakened  and 
destroyed  from  causes  primarily  acting  upon  the  mind.  If  these 
nerves,  or  the  entire  nervous  system,  are  thus  affected,  there  is  a  phys- 
ical injury  thereby  produced;    and,  if  the  primal  cause  of  this  injury 

1*  Part  of  the  opinion  is  omitted,  and  tlie  statement  of  facts  is  re\vritt<?n. 
Gilb.Pam.— 29 


450  COMPENSATORY   DAMAGES.  (Part    5 

is  tortious,  it  is  immaterial  whether  it  is  direct,  as  by  a  blow,  or  indi- 
rect, through  some  action  upon  the  mind. 

This  subject  received  a  very  careful  and  elaborate  consideration  in 
the  case  of  Bell  v.  Railway  Co.,  L.  R.  26  Ir.  428.  Mrs.  Bell  was  a 
passenger  upon  one  of  the  defendant's  trains,  and  by  reason  of  the 
defendant's  negligence  in  the  management  of  its  train  suffered  great 
fright,  in  consequence  of  which  her  health  was  seriously  impaired.  She 
had  previously  been  a  strong,  healthy  woman,  but  it  was  shown  that, 
after  this  occurrence,  she  suffered  from  fright  and  nervous  shock,  and 
was  troubled  with  insomnia,  and  that  her  health  was  seriously  impaired. 
The  jury  were  instructed  that  if,  in  their  opinion,  great  fright  was  a 
reasonable  and  natural  consequence  of  the  circumstances  in  which 
the  defendant  by  its  negligence  had  placed  her,  and  that  she  was  ac- 
tually put  in  fright  by  those  circumstances,  and  if  the  injury  to  her 
health  was,  in  their  opinion,  the  reasonable  and  natural  consequence 
of  such  great  fright,  and  was  actually  occasioned  thereby,  the  plain- 
tiff was  entitled  to  recover  damages  for  such  injury.  It  was  object- 
ed to  this  instruction  that,  unless  the  fright  was  accompanied  by  phys- 
ical injury,  even  though  there  might  be  a  nervous  ^hock  occasioned 
by  the  fright,  such  damages  would  be  too  remote.  I  In  holding  that 
this  objection  was  not  well  founded,  and  that  the  nervous  shock  was 
to  be  considered  as  a  bodily  injury,  the  court  held  that,  if  such  bodily 
injury  might  be  a  natural  consequence  of  fright,  it  was  an  element  of 
damage  for  which  a  recovery  might  be  had,  and,  referring  to  the  con- 
tention of  the  defendant,  said:  "It  is  admitted  that,  as  the  negligence 
caused  fright,  if  the  fright  contemporaneously  caused  physical  injury, 
the  damage  would  not  be  too  remote.  The  distinction  insisted  upon 
is  one  of  time  only.  The  proposition  is  that,  although,  if  an  act  of  neg- 
ligence produces  such  an  effect  upon  particular  structures  of  the  body 
as  at  the  moment  to  afford  palpable  evidence  of  physical  injury,  the 
relation  of  proximate  cause  and  effect  exists  between  such  negligence 
and  the  injury,  yet  such  relation  cannot  in  law  exist  in  the  case  of  a 
similar  act  producing  upon  the  same  structures  an  effect  which  at  a 
subsequent  time — say  a  week,  a  fortnight,  or  a  month — must  result 
without  any  intervening  cause  in  the  same  physical  injury.  As  well 
might  it  be  said  that  a  death  caused  by  poison  is  not  to  be  attributed 
to  the  person  who  administered  it,  because  the  mortal  effect  is  not  pro- 
duced contemporaneously  with  its  administration."  At  the  close  of 
his  opinion,  Lord  Chief  Baron  Palles  says :  "In  conclusion,  I  am  of 
the  opinion  that,  as  the  relation  between  fright  and  injury  to  the  nerve 
and  brain  structures  of  the  body  is  a  matter  which  depends  entirely 
upon  scientific  and  medical  testimony,  it  is  impossible  for  any  court 
to  lay  down  as  a  matter  of  law  that,  if  negligence  cause  fright,  and 
such  fright  in  its  turn  so  affect  such  structures  as  to  cause  injury  to 
health,  such  injury  cannot  be  a  consequence  which,  in  the  ordinary 
course  of  things,  would  flow  from  the  negligence,  unless  such  injury 
accompanied  such  negligence  in  point  of  time." 


Ch.  2)  MENTAL   SUFFERING.  451 

This  case  is  quoted  at  great  length  and  with  approval  in  the  eighth 
edition  of  Mr.  Sedgwick's  treatise  on  Damages,  at  section  860.  Air. 
Beven,  in  the  recent  edition  of  his  work  on  Negligence  (volume  1, 
pp.  77-81),  also  comments  upon  it  with  great  approval.  In  Purcell 
V.  Railroad  Co.,  48  Minn.  134,  50  N.  W.  1034,  16  L.  R.  A.  203,  the 
defendant  so  negligently  managed  one  of  its  cars  that  a  collision  with 
an  approaching  cable  car  seemed  imminent,  and  was  so  nearly  caused 
that  the  attendant  confusion  of  ringing  alarm  bells  and  of  passengers 
rushing  out  produced  in  the  plaintiff,  who  was  a  passenger  on  the 
car,  a  sudden  fright,  which  threw  her  into  convulsions,  and,  she  being 
then  pregnant,  caused  in  her  a  miscarriage,  and  subsequent  illness. 
The  court  held  that  the  defendant's  negligence  was  the  proximate 
cause  of  the  plaintiff's  injury,  and  that  it  was  liable  therefor,  even 
though  the  immediate  result  of  the  negligence  was  only  fright,  say- 
ing :  "A  mental  shock  or  disturbance  sometimes  causes  injury  or  illness 
of  body,  especially  of  the  nervous  system."     *     *     * 

The  mental  condition  which  superinduced  the  bodily  harm  in  the 
foregoing  cases  was  fright,  but  the  character  of  the  mental  excitation 
by  which  the  injury  to  the  body  is  produced  is  immaterial.  If  it  can 
be  established  that  the  bodily  harm  is  the  direct  result  of  the  condition, 
without  any  intervening  cause,  it  must  be  held  that  the  act  which 
caused  the  condition  set  in  motion  the  agencies  by  which  the  injury 
was  produced,  and  is  the  proximate  cause  of  such  injury.  Whether 
the  indignity  and  humiliation  suffered  by  Mrs.  Sloane  caused  the 
nervous  paroxysm,  and  the  injury  to  her  health  from  which  she  sub- 
sequently suffered,  was  a  question  of  fact,  to  be  determined  by  the 
jury.  There  was  evidence  before  them  tending  to  establish  such  fact, 
and  if  they  were  satisfied,  from  that  evidence,  that  these  results  were 
directly  traceable  to  that  cause,  and  that  her  expulsion  from  the  car 
had  produced  in  her  such  a  disturbance  of  her  nervous  system  as  re- 
sulted in  these  paroxysms,  they  were  authorized  to  include  in  their 
verdict  whatever  damage  she  had  thus  sustained.  Whether  the  de- 
fendant or  its  agents  knew  of  her  susceptibility  to  nervous  disturbance 
was  immaterial.     *     *     * 


MITCHELL  v.  ROCHESTER  RY.  CO. 

(Court  of  Appeals  of  New  York,  1S06.     151  N.  Y.  107,  45  N.  R  35,  34  L.  R. 
A.  781,  56  Am.  St.  Rep.  G04.) 

Martin,  J."  *  *  *  On  the  1st  day  of  April,  1891,  the  plaintiff 
was  standing  upon  a  crosswalk  on  Main  street,  in  the  city  of  Rochester, 
awaiting  an  opportunity  to  board  one  of  the  defendant's  cars  which 
had  stopped  upon  the  street  at  that  place.  While  standing  there,  and 
just  as  she  was  about  to  step  upon  the  car,  a  horse  car  of  the  defend- 
ant came  down  the  street.     As  the  team  attached  to  the  car  drew 

IB  I'urt  of  the  opiuiou  is  omitted. 


452  COMPENSATORY  DAMAGES.  (Part  5 

near,  it  turned  to  the  right,  and  came  close  to  the  plaintiff,  so  that 
she  stood  between  the  horses'  heads  when  they  were  stopped.  She 
testified  that  from  fright  and  excitement  caused  by  the  approach  and 
proximity  of  the  team  she  became  unconscious,  and  also  that  the  re- 
sult was  a  miscarriage,  and  consequent  illness.  Medical  testimony 
was  given  to  the  effect  that  the  mental  shock  which  she  then  received 
was  sufficient  to  produce  that  result.  Assuming  that  the  evidence 
tended  to  show  that  the  defendant's  servant  was  negligent  in  the 
management  of  the  car  and  horses,  and  that  the  plaintiff  was  free  from 
contributory  negligence,  the  single  question  presented  is  whether  the 
plaintiff  is  entitled  to  recover  for  the  defendant's  negligence  which 
occasioned  her  fright  and  alarm,  and  resulted  in  the  injuries  already 
mentioned.  While  the  authorities  are  not  harmonious  upon  this  ques- 
tion, we  think  the  most  reliable  and  better-considered  cases,  as  well 
as  public  policy,  fully  justify  us  in  holding  that  the  plaintiff  cannot  re- 
cover for  injuries  occasioned  by  fright,  as  there  was  no  immediate 
personal  injury.  Hehman  v.  Railroad  Co.,  47  Hun,  355;  Commis- 
sioners V.  Coultas,  13  App.  Cas.  222 ;  Ewing  v.  Railway  Co.,  147  Pa. 
40,  23  Atl.  340,  14  L.  R.  A.  6GG,  30  Am.  St.  Rep.  709. 

(The  learned  counsel  for  the  respondent  in  his  brief  very  properly 
stated  that  "the  consensus  of  opinion  would  seem  to  be  that  no  recov- 
ery can  be  had  for  mere  fright,"  as  will  be  readily  seen  by  an  examina- 
tion of  the  following  additional  authorities  i\  Haile  v.  Railroad  Co., 
60  Fed.  557,  9  C.  C.  A.  134,  23  L.  R.  A.  774;  Joch  v.  Dankwardt, 
85  111.  331;  Canning  v.  Inhabitants  of  Williamstown,  1  Cush.  (Mass.) 
451;  Telegraph  Co.  v.  Wood,  6  C.  C.  A.  432,  57  Fed.  471,  21  L.  R.  A. 
706;  Renner  v.  Canfield,  36  Minn.  90,  30  N.  W.  435;  1  Am.  St.  Rep. 
654;  Allsop  v.  Allsop,  5  Hurl.  &  N.  534;  Johnson  v.  Wells,  Fargo  & 
Co.,  6  Nev.  224,  3  Am.  Rep.  245;  Wyman  v.  Leavitt,  71  Me.  227, 
36  Am.  Rep.  303.  If  it  be  admitted  that  no  recovery  can  be  had  for 
fright  occasioned  by  the  negligence  of  another,  it  is  somewhat  diffi- 
cult to  understand  how  a  defendant  would  be  liable  for  its  conse- 
quences. I  Assuming  that  fright  cannot  form  the  basis  of  an  action,  it 
is  obvious  that  no  recovery  can  be  had  for  injuries  resulting  therefrom. 
That  the  result  may  be  nervous  disease,  blindness,  insanity,  or  even 
a  miscarriage,  in  no  way  changes  the  principle.  These  results  merely 
show  the  degree  of  fright,  or  the  extent  of  the  damages.  The  right 
of  action  must  still  depend  upon  the  question  whether  a  recovery  may 
be  had  for  fright.  If  it  can,  then  an  action  may  be  maintained,  how- 
ever slight  the  injury.  If  not,  then  there  can  be  no  recovery,  no  mat- 
ter how  grave  or  serious  the  consequences. 

Therefore  the  logical  result  of  the  respondent's  concession  would 
seem  to  be,  not  only  that  no  recovery  can  be  had  for  mere  fright,  but 
also  that  none  can  be  had  for  injuries  which  are  the  direct  consequen- 
ces of  it.  )  If  the  right  of  recovery  in  this  class  of  cases  should  be 
once  established,  it  would  naturally  result  in  a  flood  of  litigation  in 
cases  where  the  injury  complained  of  may  be  easily  feigned  without 


Ch.  3)  MENTAL    SUFFERING.  453 

detection,  and  where  the  damages  must  rest  upon  mere  conjecture 
or  speculation.  The  difficuhy  which  often  exists  in  cases  of  alleged 
physical  injury,  in  determining  whether  they  exist,  and,  if  so,  whether 
they  were  caused  by  the  negligent  act  of  the  defendant,  would  not 
only  be  greatly  increased,  but  a  wide  field  would  be  opened  for  ficti- 
tious or  speculative  claims.  To  establish  such  a  doctrine  would  be  con- 
trary to  principles  of  public  policy.  Moreover,  it  cannot  be  properly 
said  that  the  plaintiff's  miscarriage  was  the  proximate  result  of  the 
defendant's  negligence.  Proximate  damages  are  such  as  are  the  or- 
dinary and  natural  results  of  the  negligence  charged,  and  those  that 
are  usual,  and  may,  therefore,  be  expected.  It  is  quite  obvious  that 
the  plaintiff's  injuries  do  not  fall  within  the  rule  as  to  proximate  dam- 
ages. lyThe  injuries  to  the  plaintiff  were  plainly  the  result  of  an  ac- 
cidental or  unusual  combination  of  circumstances,  which  could  not 
have  been  reasonably  anticipated,  and  over  which  the  defendant  had 
no  control,  and  hence  her  damages  were  too  remote  to  justify  a  re- 
covery in  this  action.  These  considerations  lead  to  the  conclusion  that 
no  recovery  can  be  had  for  injuries  sustained  by  fright  occasioned  by 
the  negligence  of  another,  where  there  is  no  immediate  personal  in- 
iury,     *     *     * 


WATSON  V.  DILTS. 

(Supreme  Court  of  Iowa,  1902.     116  Iowa,  249,  89  N.  W.  1068,  57  L.  R.  A. 
559,  93  Am.   St.  Rep.  239.)       " 

Sherwin,  J.^®  The  petition  alleges  that  the  plaintiff  is  a  married 
woman,  and  that  on  the  9th  day  of  February,  1900,  she  resided,  with 
her  husband  and  child,  on  a  farm  remote  from  the  traveled  highway ; 
that  in  the  nighttime  of  said  day,  at  about  the  hour  of  11  o'clock,  and 
after  she,  her  husband,  and  her  child  had  gone  to  bed,  the  defendant 
wrongfully,  surreptitiously,  and  stealthily  entered  her  said  home,  and 
went  upstairs  to  the  second  story  thereof,  and,  as  the  plaintiff  then 
believed,  to  commit  a  felony;  that  the  identity  of  the  defendant  was 
not  known  to  her  at  the  time  she  heard  him  enter  the  house  and  go 
upstairs,  and  that  she  called  to  her  husband  to  follow  him,  which 
he  did ;  that  in  her  apprehension  for  her  own,  her  child's,  and  her 
husband's  life,  from  what  appeared  to  her  a  threatened  danger,  she 
followed  her  husband  up  to  the  room  where  the  defendant  was  found, 
and  where  she  found  him  and  her  husband  in  what  appeared  to  her 
to  be  an  encounter,  and  an  assault  upon  her  husband ;  that  she  be- 
came greatly  terrified  thereat,  and  was  attacked  with  a  violent  nervous 
chill  of  such  severity  that  her  nervous  system  completely  gave  way, 
and  she  became  prostrated,  and  was  confined  to  her  bed  with  threatened 
neurosis,  or  paralysis,  and  suffered  great  mental  and  physical  pain  for 
nearly  six  weeks,  during  all  of  which  time  she  was  confined  to  her 

16  Part  of  the  opinion  is  omitted. 


454  COMPENSATORY  DAMAGES.  (Part    5 

bed,  and  unable  to  attend  to  her  household  duties.  The  demurrer  to 
the  petition  is  based  on  the  ground  that  the  damages  claimed  are  too 
remote  and  speculative,  and  that  the  plaintiff  seeks  recovery  for  fright 
and  injuries  resulting  therefrom  without  any  physical  injury  to  her 
which  caused  the  fright.  The  petition  alleges  physical  injuries  re- 
sulting from  the  fright  caused  by  the  defendant,  and  the  demurrer 
thereto  raises  the  question  whether  recovery  may  be  had  for  physical 
injuries  so  caused. 

Many  cases  have  been  before  the  courts  in  which  the  question  of  a 
recovery  for  mental  pain  alone,  and  for  physical  disability  produced 
by  fright,  unaccompanied  by  physical  impact,  have  been  decided ; 
and  the  decisions  on  these  questions  are  in  conflict,  though  it  is  proba- 
bly true  that  the  numerical  weight  of  authority  denies  the  right  of 
action.  But  the  cases  so  holding  are  not  in  harmony  as  to  the  reasons 
given  for  denying  the  right  of  action;  some  of  them  hold  that  the 
injury  is  not  the  proximate  result  of  the  alleged  negligent  or  wrongful 
act,  while  others  refuse  a  recovery  for  the  reason  that  it  is  practically 
impossible  to  satisfactorily  administer  any  other  rule  and  serve  the 
purposes  of  justice.  *  *  *  q^j.  attention  has  not,  however,  been 
called  to  any  case  in.  which  the  facts  averred  are  precisely  parallel  to 
the  facts  in  this  case,  and  in  no  case  to  which  we  have  been  cited,  and 
in  no  case  which  our  own  investigation  has  discovered,  have  we  found 
facts  alleged  which  so  strongly  condemn  the  unlimited  application 
of  the  rule  contended  for  by  the  appellee  as  do  the  facts  pleaded  in  the 
case  at  bar.  *  *  *  \Nor  could  it  be  said,  under  such  circumstances, 
that  the  prostration  resulting  from  the  fright  so  caused  was  not  the 
proximate  or  probable  result  of  the  defendant's  act.  "Proximate  cause 
is  probable  cause ;  and  the  proximate  consequence  of  a  given  act  or 
omission,  as  distinguished  from  a  remote  consequence,  is  one  which 
succeeds  naturally  in  the  ordinary  course  of  things,  and^  which,  there- 
fore, ought  to  have  been  anticipated  by  the  wrongdoer.""  1  Thomp. 
Neg.  156.  It  is  within  the  common  observation  of  all  that  fright  may, 
and  usually  does,  affect  the  nervous  system,  which  is  a  distinctive  part 
of  the  physical  system,  and  controls  the  health  to  a  very  great  extent, 
and  that  an  entirely  sound  body  is  never  found  with  a  diseased  nervous 
organization ;  consequently  one  who  voluntarily  causes  a  diseased 
condition  of  the  latter  must  anticipate  the  consequence  which  follows 
it. ,  The  nerves  being,  as  a  matter  of  fact,  a  part  of  the  physical  sys- 
tem, if  they  are  affected  by  fright  to  such  an  extent  as  to  cause  physical 
pain,  it  seems  to  us  that  the  injury  resulting  therefrom  is  the  direct 
result  of  the  act  producing  the  fright.     *     *     * 

It  is  undoubtedly  true  that  the  door  should  not  be  thrown  wide  open 
for  trumped-up  claims  on  account  of  injuries  resulting  from  fright, 
and  we  do  not  intend  to  so  open  it  in  this  case.  Each  case  must,  of 
necessity,  depend  on  its  own  facts.  We  held  in  Lee  v.  City  of  Burling- 
ton, 113  Iowa,  356,  85  N.  W.  618,  86  Am.  St.  Rep.  379,  that  no  re- 
covery could  be  had  for  the  death  of  a  horse  alleged  to  have  been 


Ch.  2)  MENTAL    SUFFERING.  455 

caused  by  fright,  because  death  therefrom  could  not  be  anticipated, 
and  hence  it  was  not  the  proximate  result  of  the  defendant's  negli- 
gence. In  Mahoney  v.  Dankwart,  108  Iowa,  321,  79  N.  W.  134,  the 
question  before  us  was  not  decided.  That  case  was  disposed  of  on 
the  facts  there  presented,  and  was  a  case  of  simple  negligence.    ♦    *    ♦ 


BRAUN  V.  CRAVEiN. 
(Supreme  Court  of  Illinois,  1898.     175  111.  401,  51  N.  E.  657,  42  L.  R.  A.  199.) 

Craven  went  to  the  house  of  plaintiff's  sister,  his  tenant,  to  collect 
unpaid  rent.  Plaintiff  was  sitting  on  the  floor,  and  her  sister  was 
packing  up  her  household  goods.  The  defendant  cried  in  a  loud  and 
angry  voice:  "I  forbid  you  moving.  If  you  attempt  to  move  I  will 
have  a  constable  here  in  five  minutes."  Plaintiff  averred  that  she  be- 
came greatly  frightened,  and  that  in  consequence  of  the  nervous  shock 
she  became  ill  with  St.  Vitus  dance.  A  verdict  in  her  favor  was  ren- 
dered for  $9,000.  The  Appellate  Court  reversed  the  judgment  thereon, 
and  plaintiff  appealed  therefrom. 

Phillips,  J.^^  [after  reviewing  the  authorities].  Appellant  relies 
upon  Bell  v.  Railroad  Co.,  26  L.  R.  Ir.  432,  and  Purcell  v.  Railway 
Co.,  48  Minn.  134,  50  N.  W.  1034,  16  L.  R.  A.  203.  Both  of  these 
cases  fully  sustain  the  contention  of  appellant  that  where  sudden  ter- 
ror occasions  a  nervous  shock,  resulting  from  a  negligent  act,  without 
impact  or  physical  contact,  by  which  the  mind  is  affected,  which  may 
press  on  the  health  and  affect  the  physical  organization,  a  cause  of  ac- 
tion for  negligence  results.  These  cases  have  the  approval  of  Mr. 
Beavan,  in  his  work  on  Negligence  (volume  1,  pp.  76-84),  and  of  Mr. 
Sedgwick,  in  his  work  on  Damages  (8th  Ed.  §  861).  *  *  *  'The 
courts  in  the  above  cases  seem  to  have  lost  sight  of  the  only  safeguard 
against  imposition  in  cases  arising  from  negligence,  and  that  is  the 
elementary  rule  that,  before  a  plaintiff  can  recover,  he  must  show  a 
damage  naturally  and  reasonably  arising  from  the  negligent  act,  and 
reasonably  to  be  anticipated  as  a  result.)  Two  trains  might  be  passing 
on  a  double-track  road,  one  carrying  passengers,  and  the  other  freight, 
and,  at  the  moment  when  the  engine  of  the  freight  train  is  immediately 
opposite  a  passenger  car,  it  might  become  necessary  to  sound  a  whistle, 
whose  effect  might  be  to  startle  and  greatly  frighten  a  nervous  person 
in  the  passenger  car ;  and  the  fact  that  a  whistle  unexpectedly  sounded 
would  be  calculated  to  startle  and  frighten  a  nervous  person,  and  that 
such  fright  might  produce  a  nervous  shock  that  would  cause  physical 
injury,  under  the  principle  announced  in  the  Purcell  and  Bell  Cases, 
supra,  would  authorize  a  recovery.  That  could  only  be  done,  under 
the  authority  of  those  cases,  by  absolutely  ignoring  the  principle  that 
the  injury  might  be  reasonably  anticipated  as  the  result  of  the  act, 

i»  Part  of  the  opinion  is  omitted,  and  the  statement  of  facts  is  rewritten. 


456  COMPENSATORY  DAMAGES.  (Part  5 

and,  where  it  cannot  be  so  anticipated,  the  result  is  too  remote.  These 
cases  are  discussed  by  Beavan  and  Sedgwick  without  laying  sufficient 
stress  on  this  principle. 

In  our  opinion,  these  authorities,  so  much  relied  on  by  counsel  for 
appellant,  are  not  only  against  the  great  weight  of  authority,  but  are 
not  sustainable  on  principle.  >  Appellee,  in  this  case,  was  on  the  prem- 
ises to  collect  rent,  as  he  lawfully  might,  without  any  knowledge  of 
the  nervous  condition  of  appellant ;  and  it  cannot  be  said  that  his  man- 
ner, language,  or  gestures,  or  declared  purpose  of  preventing  the  re- 
moval of  the  household  effects  of  his  tenants,  were  naturally  and  rea- 
sonably calculated  to,  or  that  it  might  be  anticipated  they  would, 
produce  the  peculiar  injury  sustained  by  the  appellant.  It  could  not 
have  been  reasonably  anticipated  by  the  appellee  that  any  injury  there- 
from could  reasonably  have  resulted.  The  action  is  purely  one  of 
negligence;  and,  if  appellee  could  be  held  liable  under  this  evidence, 
then  any  person  who  might  so  speak  or  act  as  to  cause  a  stranger 
of  peculiar  sensibility,  passing  by,  to  sustain  a  nervous  shock  pro- 
ductive of  serious  injury,  might  be  held  liable.  Thus,  one  whose  very 
existence  was  unknown  to  the  party  guilty  of  so  speaking  and  acting 
would  be  given  a  right  of  recovery.  Terror  or  fright,  even  if  it  re- 
sults in  a  nervous  shock  which  constitutes  a  physical  injury,  does  not 
create  a  liability.  On  the  ground  of  public  policy  alone,  having  ref- 
erence to  the  dangerous  use  to  be  made  of  such  cause  of  action,  we 
hold  that  a  liability  cannot  exist  consequent  on  mere  fright  or  terror 
which  superinduces  nervous  shock.     *     *     *  ^* 


III.  Apart  from  Physical  Injury. 
WOLF  V.  TRINKLE. 

(Supreme  Court  of  Indiana,  18S5.     103  Ind.  355,  3  N.  E.  110.) 

ZoLLARS,  J.^®  The  evidence  in  this  case  tends  to  show  that  at  about 
8  o'clock  at  night,  when  appellee,  Jeremiah  Trinkle,  was  away  from 
home,  and  his  wife,  Louisa  E.,  was  there  alone  with  three  small  chil- 
dren, and  in  a  delicate  condition,  appellant  went  to  the  house,  and, 
without  any  forewarning  or  bidding,  opened  the  door  and  went  in. 

18  See,  also,  Spade  v.  L.  &  B.  R.  Co.,  172  Mass.  488,  52  N.  E.  747,  43  L.  R. 
A.  832,  70  Am.  St.  Rep.  298  (1899) ;  Smith  v.  P.  T.  Co.,  174  Mass.  576,  55  N. 
E.  380,  47  L.  R.  A.  323,  75  Am.  St.  Rep.  374  (1899) ;  Romans  v.  Railway  Co., 
180  Mass.  456,  62  N.  E.  737,  57  L.  R.  A.  291,  91  Am.  St.  Rep.  324  (1902); 
Purcell  V.  St.  P.  C.  Rv.  Co.,  48  Minn.  134,  .50  N.  W.  1034,  16  L.  R.  A.  203 
(1892) ;  Bell  v.  Great  Northern  Ry.,  26  L.  R.  Ir.  428  (1889) ;  Lee  v.  City  of  Bur- 
lington, ante,  p.  163,  note;  Hamlin  v.  G.  N.  Ry.,  ante,  p.  64;  Scheffer  v.  Rail- 
road Co.,  ante,  p.  103 ;  Kendrick  v.  McCrary,  post.  p.  490 ;  Long  v.  Booe,  post, 
p.  492 ;  and  the  eases  under  the  headings  "Exemplary  Damages"  and  "Aggra- 
vation." 

10  Part  of  the  opinion  is  omitted. 


Ch.  2)  MENTAL    SUFFERING.  457 

Louisa  E.  was  in  bed  with  her  children  at  the  time.  After  a  few 
words  had  passed  between  her  and  appellant,  he  went  to  the  bed, 
pushed  back  the  covers,  laid  hands  upon  and  took  improper  liberties 
with  her  person,  and  so  acted  as  to  indicate  a  lascivious  purpose.  He 
remained  at  the  bed  for  a  half  hour  or  more;  but,  being  repelled  by 
her,  he  desisted,  and  shortly  afterwards  left  the  house.  The  fright 
to  her  was  such  that  she  got  up  and  remained  up  the  balance  of  the 
night  without  sleep.  The  evidence  also  tends  to  make  good  the  aver- 
ments of  the  complaint,  that  by  and  by  reason  of  the  indecent  assault 
and  battery  upon  her  she  has  undergone  and  is  still  undergoing  physi- 
cal and  mental  suffering.  *  *  *  The  jury  award  $500  in  her 
favor.     *     *     * 

The  court  charged  the  jury  as  follows:  "(5)  If  you  find  for  the 
plaintiff,  you  will  assess  in  her  favor  such  damages,  within  the  amount 
claimed,  as  you  think  she  has  sustained,  and  which  will  be  a  compensa- 
tion to  her  for  any  loss  and  injury  occasioned  which  are  the  direct 
results  of  said  defendant's  conduct."  The  court  also  gave  to  the 
jury  the  following  instruction  asked  by  appellee:  "No.  1.  While  the 
jury  are  not  authorized  by  the  law  to  give  exemplary  or  punitive 
damages  in  this  case  in  the  event  a  verdict  is  found  for  the  plaintiff, 
yet  if  the  jury  find  for  the  plaintiff,  full  compensatory  damages  should 
be  awarded;  and  in  arriving  at  compensatory  damages  the  jury  are  not 
necessarily  restricted  to  the  naked  pecuniary  loss ;  for,  besides  dam- 
ages for  pecuniary  loss  or  injury,  the  jury  may  allow  such  as  are  the 
direct  consequence  of  the  act  complained  of,  for  injury  to  Mrs.  Trin- 
kle's  good  repute,  her  social  position,  for  physical  suffering,  bodily 
pain,  anguish  of  mind,  sense  of  shame,  humiliation,  and  loss  of  honor." 

It  was  urged  below  in  the  motion  for  a  new  trial,  and  is  urged  in  ar- 
gument here,  that  the  damages  are  excessive.  It  is  also  urged  in 
argument  here  that  the  above  instructions  tended  to  augment  the  dam- 
ages by  creating  the  impression  in  the  mmds  of  the  jurors  that  dam- 
ages in  excess  of  the  injury  suffered  might  be  awarded.  We  do  not 
think  that  the  instructions  are  open  to  this  objection.  The  jury  was 
charged  in  these  instructions,  in  explicit  terms,  that  exemplary  or  puni- 
tive damages  could  not  be  awarded,  and  that  the  damages  should  be 
limited  to  such  injury  as  was  the  direct  result  of  appellant's  wrongs. 
The  special  injuries  for  which  damages  might  be  awarded  were  not 
improperly  stated,  i^  It  is  well  settled  that,  in  a  case  of  the  character 
of  this,  damages  may  be  awarded  for  physical  suffering,  for  mental 
trouble, — as  anguish  of  mind,  sense  of  shame  or  humiliation,  loss  of 
honor  and  good  name, — all  of  which  are  considered  compensatory, 
and  not  exemplary  or  punitive  damages.     *     *     *  20 

20  See  the  case  of  De  May  v.  Roberts,  46  Mich.  160,  9  N.  W.  146,  41  Am. 
Rep.  154  (1881). 

Danuicos  for  mental  suffering  are  not  recoverable  consequent  upon  a  solicita- 
tion for  adultery  without  assault.  Reed  v.  Maley,  115  Ky.  816,  74  S.  W.  1079. 
62  L.  R.  A.  900  (1903). 


:t  O,/    4-T-v  K.^^**'l>  '>v*^      ^ 


458  COMPENSATORY   DAMAGES.  (Part    5 

MOYER  V.  GORDON. 

(Supreme  Court  of  Indiana,  18S7.     113  Ind.  282,  14  N.  E.  476.) 

Mitchell,  J.^^  This  was  a  suit  by  Gordon  against  Moyer  and  oth- 
ers to  recover  damages  for  an  alleged  unlawful  invasion  of,  and  entry 
into  and  upon,  the  house  and  premises  of  the  former  by  the  latter, 
and  for  forcibly  ejecting  the  plaintiff,  with  his  family,  household 
goods,  and  other  personal  property,  therefrom.     *     *     * 

It  is  insisted  that  the  damages,  $500,  are  excessive,  and  that  the 
verdict  and  judgment  are  not  sustained  by  the  evidence.  The  appellee 
was  in  the  peaceable  possession  of  the  premises  in  question,  not  only 
under  a  claim  of  right,  but,  as  the  jury  find,  having  the  actual  right. 
He  had  never  agreed,  as  the  jury  found,  that  the  landlord  might,  un- 
der any  pretext,  forcibly  expel  him  from  the  premises.  The  appel- 
lant, we  must  assume,  unlawfully  entered  upon  the  premises  of  which 
the  appellee  had  the  rightful  and  peaceful  possession,  and  evicted  him 
and  his  family,  together  with  all  their  personal  effects,  therefrom. 
They  took  and  held  possession  until  they  were  threatened  with  force, 
when  they  abandoned  the  premises  to  the  tenant,  who  is  shown  to  have 
been  lawfully  entitled  to  occupy.  C^The  jury  were  authorized  to  take 
into  consideration,  and  compensate  the  appellee  for,  the  actual  injury 
to  his  goods  and  property,  the  actual  inconvenience  and  expense  of 
being  deprived  of  their  use,  and  of  restoring  them  to  their  proper 
places ;  in  addition  to  which  he  was  entitled  to  compensation  for  any 
bodily  or  mental  anguish  or  suffering,  for  injury  to  his  pride  and  so- 
cial position,  and  for  the  sense  of  shame  and  humiliation  at  having 
his  wife  and  family  turned  out  of  their  home  into  the  public  street. 
We  cannot  say,  from  anything  that  appears,  that  the  damages  were  ex- 
cessive, nor  that  the  verdict  was  not  sustained  by  the  evidence.    *    *    * 


LARSON  v.  CHASE. 

(Supreme  Court  of  Minnesota,  1891.     47  Minn.  307.  50  N.  W.  238,  14  L.  R.  A. 
85,  28  Am.  St.  Rep.  370.) 

Mitchell,  J.^^  This  was  an  action  for  damages  for  the  unlawful 
mutilation  and  dissection  of  the  body  of  plaintiff's  deceased  husband. 
The  complaint  alleges  that  she  was  the  person  charged  with  the  burial 
of  the  body,  and  entitled  to  the  exclusive  charge  and  control  of  the 
same.  The  only  damages  alleged  are  mental  suffering  and  nervous 
shock,  A  demurrer  to  the  complaint,  as  not  stating  a  cause  of  action, 
was  overruled,  and  the  defendant  appealed.     *     *     * 

There  has  been  a  great  deal  of  misconception  and  confusion  as  to 
when,  if  ever,  mental  suffering,  as  a  distinct  element  of  damage,  is 

21  Part  of  the  opinion  is  omitted 


Ch    2)  MENTAL    SUFFERING.  *^-' 

a  subject  for  compensation.    This  has  frequently  resulted  from  courts  ,.  I , 

giving  a  wrong  reason  for  a  correct  conclusion  that  in  a  given  case 
no  recovery  could  be  had  for  mental  suffering,  placing  it  on  the 
ground  that  mental  suffering,  as  a  distinct  element  of  damage,  is 
never  a  proper  subject  of  compensation,  when  the  correct  ground  was 
that  the  act  complained  of  was  not  an  infraction  of  any  legal  right, 
and  hence  not  an  actionable  wrong  at  all,  or  else  that  the  mental  suf- 
fering was  not  the  direct  and  proximate  effect  of  the  wrongful  act, 

Counsel  cites  the  leading  case  of  Lynch  v.  Knight,  9  H.  L.  Cas 
577-598.  We  think  he  is  laboring  under  the  same  misconception  of 
the  meaning  of  the  language  used  in  that  case  into  which  courts  have 
not  infrequently  fallen,  faking  the  language  in  connection  with  the 
question  actually  before  the  court,  that  case  is  not  authority  for  de- 
fendant's position.  It  is  unquestionably  the  law,  as  claimed  by  appel- 
lant, that  "for  the  law  to  furnish  redress  there  must  be  an  act  which, 
under  the  circumstances,  is  wrongful ;  and  it  must  take  effect  upon 
the  person,  the  property,  or  some  other  legal  interest,  of^^the  party 
complaining.  Neither  one  without  the  other  is  sufficient."  _  This  is 
but  another  way  of  saying  that  no  action  for  damages  will  lie  for  an 
act  which,  though  wrongful,  infringed  no  legal  right  of  the  plaintiff, 
although  it  may  have  caused  him  mental  suffering.  But,  where  the 
wrongful  act  constitutes  an  infringement  on  a  legal  right,  mental 
suffering  may  be  recovered  for,  if  it  is  the  direct,  proximate,  and  nat- 
ural result  of  the  wrongful  act. 

It  was  early  settled  that  substantial  damages  might  be  recovered 
in  a  class  of  torts  where  the  only  injury  suffered  is  mental— as  for 
example,  an  assault  without  physical  contact.     So,  too,  in  actions  for 
false  imprisonment,  where  the  plaintiff  was  not  touched  by  the  defend- 
ant, substantial  damages  have  been  recovered,  though  physically  the 
plaintiff  did  not  suffer  any  actual  detriment.     In  an  action  for  seduc- 
tion substantial  damages  are  allowed  for  mental  sufferings,  although 
there  be  no  proof  of  actual  pecuniary  damages  other  than  the  nomi- 
nal damages  which  the  law  presumes.     The  same  is  true  in  actions 
for  breach  of  promise  of  marriage.    Wherever  the  act  complained  of^,. 
constitutes  a  violation  of  some  legal  right  of  the  plaintiff,  which  al-j  /    -Ca^j.^ 
ways,  in  contemplation  of  law,  causes  injury,  he  is  entitled  to  recover 
all  damages  which  are  the  proximate  and  natural  consequence  of  the 
wrongful  act.    That  mental  suffering  and  injury  to  the  feelings  would  |/ 
be  ordinarily  the  natural  and  proximate  result  of  knowledge  that  the  ' 
remains  of  a  deceased  husband  had  been  mutilated  is  too  plain  to  ad- 
mit of  argument. 

In  Meagher  v.  Driscoll,  99  Mass.  281,  96  Am.  Dec.  759,  where  the 
defendant^entcred  upon  plaintiff's  land,  and  dug  up  and  removed  the 
dead  body  of  his  child,  it  was  held  that  plaintiff  might  recover  com- 
pensation for  the  mental  anguish  caused  thereby.  It  is  true  that  in 
that  case  the  court  takes  occasion  to  repeat  the  old  saying  that  a  dead 
body  is  not  property,  and  makes  the  gist  of  the  action  the  trespass 


400  COMPENSATORY  DAMAGES.  (Part    5 

upon  plaintiff's  land;  but  it  would  be  a  reproach  to  the  law  if  a  plain- 
tiff's right  to  recover  for  mental  anguish  resulting  from  the  mutilation 
or  other  disturbance  of  the  remains  of  his  dead  should  be  made  to 
depend  upon  whether  in  committing  the  act  the  defendant  also  com- 
mitted a  technical  trespass  upon  plaintiff's  premises,  while  everybody's 
common  sense  would  tell  him  that  the  real  and  substantial  wrong  was 
not  the  trespass  on  the  land,  but  the  indignity  to  the  dead.     *     *     *  23 


MENTZER  V.  WESTERN  UNION  TELEGRAPH  CO. 

(Supreme  Court  of  Iowa,  1805.    93  Iowa,  752,  62  N.  W.  1,  28  L.  R.  A.  72,  57 

Am.  St.  Rep.  294.) 

Deemer,  ]."*  *  *  *  On  the  11th  day  of  April,  1892,  one  H. 
Dorn  delivered  to  the  defendant,  at  Creston,  Ohio,  to  be  transmitted 
to  plaintiff,  at  Cedar  Rapids,  Iowa,  the  following  telegraphic  message : 
"Creston,  Ohio,  11,  1892.  To  J.  D.  Mcntzer,  Cedar  Rapids,  Iowa. 
Mother  dead.  Funeral  Wednesday.  Answer  if  coming  or  not.  H. 
Dorn."  That  Dorn  paid  the  regular  charges  for  transmitting  the  same, 
and,  at  the  time  of  the  delivery  of  the  message,  informed  defendant's 
employe  in  charge  of  the  office  at  Creston  that  it  was  plaintiff's  mother 
who  was  dead.  That  the  message  reached  defendant's  office  at  Cedar 
Rapids  at  9  :16  a.  m.,  April  11,  1892,  but,  through  the  negligence  and 
carelessness  of  defendant's  employes,  was  not  delivered  until  9  p.  m., 
April  13th.  The  plaintiff  inquired  at  defendant's  office  at  Cedar  Rapids 
at  about  7  o'clock  in  the  evening  of  April  11th,  and  was  informed 
there  was  nothing  there  for  him.  It  is  shown  beyond  dispute  that 
plaintiff's  mother  died  at  Creston,  Ohio,  on  April  11,  1892,  and  was 
buried  on  the  13th,  and  that,  by  reason  of  the  failure  of  defendant  to 
deliver  the  message  informing  plaintiff  of  her  death,  he  was  prevented 
from  attending  her  funeral.  There  was  also  testimony  tending  to 
show  that  plaintiff  lost  some  time  from  his  work,  in  trying  to  discover 
whether  a  message  had  been  sent  him  or  not.     *     *     * 

We  have,  then,  the  question  as  to  whether  damages  for  mental  suf- 
fering can  be  recovered  in  actions  of  this  kind,  independent  of  any 
physical  injury,  where  the  company  is  advised  of  the  character  of  the 
message,  and  negligently  fails  to  deliver  it.  This  question  has  been 
variously  decided  by  the  different  courts  of  the  country,  but,  up  to 
this  time,  is  an  open  one  in  this  state.     *     *     * 

23  See,  in  accord,  Koerber  v.  Patek,  123  Wis.  453,  102  N.  W.  40,  68  L.  R. 
A.  956  (1905),  and  autliorities  there  cited ;  Renihan  v.  Wright,  125  Ind.  536, 
25  N.  E.  822.  9  L.  R.  A.  514,  21  Am.  St.  Rep.  249  (1890) ;  Thirkfield  v.  M.  V. 
Cem.  A.,  12  Utah,  76,  41  Pae.  564  (189.5);  Jacobus  v.  Children  of  Israel.  307 
Ga.  518,  33  S.  E.  853.  73  Am.  St.  Rep.  141  (1899) ;  Meagher  v.  Driscoll,  99  Mass. 
281,  96  Am.  Dec.  759  (1808) ;  Louisville  &  N.  Ry.  v.  Hull,  113  Ky.  501,  OS  S. 
W.  4.33,  57  L.  R.  A.  77  (1902). 

24  Part  of  the  opinion  is  omitted. 


^'^<:h.2)       '"^^-'^''^  MENTAL    SUFFERING.  _^      ^       ^  /  401 

The  general  rule  which  has  come  down  to  us  from  England,  no 
doubt,  is  that  mental  anguish  and  suffering  resulting  from  mere  neg- 
ligence, unaccompanied  with  injuries  to  the  person,  cannot  be  made 
the  basis  of  an  action  for  damages.  See  Lynch  v.  Knight,  9  H.  L.  Cas. 
577;  Hobbs  v.  Railroad  Co.,  L.  R.  10  Q.  B.  122.  And  doubtless  this 
is  the  rule  of  law  to-day  in  all  ordinary  actions,  either  ex  contractu 
or  ex  delicto.  But  it  must  be  remembered  that  there  are  exceptions 
to  the  rule,  and  that  the  telegraph,  as  a  means  of  conveying  intelligence, 
is  comparatively  a  new  invention.     *     *     * 

Somewhat  akin  is  it  to  a  common  carrier,  in  this:  that  they  are 
both  carriers,  and  must  serve  all  alike ;  but  the  carrier  transports  per- 
sons or  goods,  while  the  telegraph  conveys  intelligence.  The  very 
object  of  the  invention  is  to  quickly  convey  information  from  one  to 
another,  upon  which  that  other  may  act.  It  is  a  public  use,  and  for 
that  reason  eminent  domain  may  be  exercised  in  its  behalf,  and  is  en- 
gaged in  a  business  affecting  public  interests  to  such  an  extent  that 
the'  state  may  regulate  the  charges  of  companies  engaged  in  the  busi- 
ness. It  is  not  an  insurer  of  the  accuracy  or  of  the  delivery  of  mes- 
sages intrusted  to  it,  but  it  is  so  far  a  common  carrier  as  to  be  bound 
to  serve  all  people  alike,  and  to  exercise  due  care  in  the  discharge  of  its 
public  duties.  Nor  can  it  provide  by  contract  for  exemption  from  lia- 
bility from  the  consequences  of  its  own  negligence.  Enough  has  been 
stated  to  show  that  it  owes  a  duty  to  all  whom  it  attempts  to  serve, 
independent  of  the  contractual  one  entered  into  when  it  receives  its 
messages.  Telegraph  companies  are  held,  then,  to  the  exercise  of  due 
care,  and  for  negligence,  either  in  sending  or  delivering  messages,  are 
liable  to  any  person  injured  thereby  for  all  the  damages  he  may  sus- 
tain.! ... 

[We  have  stated  these  rules  in  order  to  show  that  one  who  is  mjured 
by  their  neglect  of  duty  may  maintairi  an  action,  either  ex  contractu 
or  ex  delicto,  for  the  injuries  sustained.^  The  rule,  no  doubt,  is  as  an- 
nounced by  Judge  Cooley  in  his  work  on  Torts,  at  page  104  et  seq. : 
"In  many  cases  an  action,  as  for  tort,  or  an  action  for  a  breach  of 
contract,  may  be  brought  by  the  same  party  on  the  same  state  of  facts. 
This  at  first  may  seem  in  contradiction  to  the  definition  of  a  tort  as  a 
wrong  unconnected  with  contract,  but  the  principles  which  sustain 
such  actions  will  enable  us  to  solve  the  seeming  difficulty.*  *  * 
There  are  also,  in  certain  relations,  duties  imposed  by  law,  a  failure 
to  perform  which  is  regarded  as  a  tort,  though  the  relations  themselves 
may  be  formed  by  contract  covering  the  same  ground.  *  *  * 
Thus,  for  breach  of  the  general  duty  imposed  by  law,  because  of  the 
relation  one  form  of  action  may  be  brought,  and  for  the  breach  of 
contract  another  form  of  action  may  be  brought."     *     *     * 

Under  all  known  rules  of  law,  plaintiff  is  entitled  to  some  damages. 
Defendant  insists  they  are  simply  nominal,  and  plaintiff  contends  he  has 
suffered  acute  and  actual  damages,  for  which  he  should  be  compen- 
sated.    The  general  rule  of  damages  for  breach  of  contract  comes 


462  COMPENSATORY  DAMAGES.  (Part    5 

down   to   us  from   the   opinion   of   Hadley   v.    Baxendale,    9    Exch. 
3^2      *     *     * 

In  actions  for  tort  the  rule  is  much  broader.  The  universal  and  car- 
dinal principle  in  such  cases  is  that  the  person  injured  shall  receive 
compensation  commensurate  with  his  loss  or  injury,  and  no  more. 
This  includes  damages  not  only  for  such  injurious  consequences  as 
proceed  immediately  from  the  cause  which  is  the  basis  of  the  action, 
but  consequential  damages  as  well.  These  damages  are  not  limited 
or  affected,  so  far  as  they  are  compensatory,  by  what  was  in  fact  con- 
templated by  the  party  in  fault.  He  who  is  responsible  for  a  negligent 
act  must  answer  "for  all  the  injurious  results  which  flow  therefrom,  by 
ordinary,  natural  sequence,  without  the  interposition  of  any  other 
negligent  act  or  overpowering  force."  Whether  the  injurious  conse- 
quences may  have  been  "reasonably  expected"  to  follow  from  the  com- 
mission of  the  act  is  not  at  all  determinative  of  the  liability  of  the 
person  who  committed  the  act  to  respond  to  the  person  suffering  there- 
from. As  said  in  Stevens  v.  Dudley,  56  Vt.  158,  "it  is  the  unexpected, 
rather  than  the  expected,  that  happens  in  the  great  majority  of  cases 
of  negligence." 

Under  all  the  authorities,  it  was  the  duty  of  the  defendant  to  trans- 
mit and  deliver  messages  intrusted  to  it  without  unreasonable  delay ; 
and,  in  failing  to  do  so,  it  becomes  liable  for  all  damages  resulting 
therefrom.  Cooley,  Torts,  646,  647;  Gray,  Commun.  Tel.  §§  81,  82, 
et  seq. ;  Whart.  Neg.  §  767.  That  a  person  is  entitled  to  at  least 
nominal  damages  for  an  infraction  of  the  duty  imposed  upon  a  tele^ 
graph  company  is  conceded.  And  it  must  also  be  conceded  that  every 
person  desires  to  attend  upon  the  obsequies  of  his  near  relations.  And 
when,  able  and  anxious  to  attend,  he  is,  through  the  negligence  of  a 
telegraph  company,  not  notified  of  their  death  in  time  to  attend  the 
funeral,  he  naturally  and  almost  inevitably  suffers  mental  pain  and 
anguish.  No  man  is  so  depraved  but  that  he  yet  remembers  his  moth- 
er, and,  when  able,  will  pay  her  the  last  respect  that  is  her  due.  ^^ 

In  the  case  at  bar  it  is  established  that  defendant  knew  the  nature 
of  the  intelligence  it  was  to  transmit,  and  also  knew  that,  if  it  was  not 
delivered  within  a  reasonable  time,  plaintiff  was  likely  to  be  greatly 
pained  on  account  not  only  of  not  knowing  of  the  death  of  his  mother 
until  she  was  placed  under  the  ground,  but  also  because  of  his  inability 
to  attend  the  funeral  on  account  of  the  delay.  That  the  defendant 
should  reasonably  have  contemplated  such  results,  under  the  rule  laid 
down  in  Hadley  v.  Baxendale,  is  clear.  ^ 

But  it  is  insisted  that  damages  for  mental  suffering,  although  con- 
templated by  the  parties,  cannot  be  recovered  for  mere  breach  of  con- 
tract. That  such  is  the  general  rule  announced  by  the  courts,  and 
that  it  is  the  rule  now  with  reference  to  all  ordinary  contracts,  must 
be  conceded.  But  it  must  be  remembered  that  this  rule  grew  up  at  a 
time  when  there  was  no  thought  of  the  transmission  of  intelligence 
by  electricity.    Breaches  of  contract,  such  as  the  one  in  question,  were 


Ch.  2)  MENTAL    SUFFERINO.  46o 

unknown  to  the  common  law.  The  business  of  telegraphy  has  grown 
up  within  comparatively  recent  years.  But  must  we  say  that  the  law 
furnishes  no  remedy  because  no  case  of  the  kind  was  known  to  the 
common  law?  If  so,  such  law  is  no  longer  applicable  to  our  present 
conditions.  Regard  must  be  had,  too,  to  the  subject-matter  of  the 
contract.  The  message  does  not  relate  to  property.  In  such  cases  for 
breach  of  contract  the  law  affords  adequate  compensation.  But  it  does 
relate  to  the  feelings,  the  sensibilities,  aye,  sometimes  even  to  the  life, 
of  the  individual.  It  does  not  affect  his  pocketbook  seriously,  but  it 
does  relate  to  his  feelings,  his  emotions,  his  sensibilities, — those  finer 
qualities  which  go  to  make  the  man.  Shall  we  say  that  in  one  case 
the  law  affords  compensation,  and  in  the  other  it  does  not?  Instead  of 
goods  which  are  conveyed  by  the  defendant,  it  is  intelligence,— thought. 
If  defendant  were  a  common  carrier  of  goods,  it  w^ould  be  liable  for 
all  damages  sustained  by  reason  of  its  breach  of  contract  to  deliver 
them  within  a  reasonable  time. 

But  it  is  said  no  damages  can  be  recovered  for  failure  to  deliver 
intelligence,  beyond  the  amount  actually  paid  for  the  message,  or  nom- 
inal damages,  although  the  addressee  may  endure  the  greatest  of  men- 
tal pangs,  notwithstanding  the  fact  that  such  suffering  was  in  the  con- 
templation of  the  parties  at  the  time  the  contract  was  made.  Of  course,  , 
every  breach  of  contract  is  likely  to  cause  some  pain,  but  most  of  these 
contracts  relate  to  property  and  pecuniary  matters,  and  in  such  case 
the  law  furnishes  what  has  always  been  held  to  be  an  adequate  remedy 
for  the  pecuniary  loss  sustained.  Mental  suffering  has  never  been 
considered  as  within  the  contemplation  of  the  parties  at  the  time  the 
contract  is  entered  into,  and  recovery  cannot  be  had  therefor.  ^  But 
few  contracts  have  direct  relation  to  the  feelings  and  sensibilities  of 
the  parties  entering  into  them,  and  the  pain  growing  out  of  the  ordi- 
nary breach  of  contracts  relating  to  property  is  entirely  different  from 
that  suffered  from  a  death  message.    Suth.  Dam.  §  9S0. 

We  find  a  well-recognized  exception  to  the  general  rule  that  damages 
cannot  be  had  for  mental  anguish  in  cases  of  breach  of  contract,  in  the 
action  for  breach  of  promise  of  marriage,  and  the  reason  for  this  ex- 
ception is  quite  applicable  here.  In  such  cases  the  defendant,  in  mak- 
ing his  contract,  is  dealing  with  the  feelings  and  emotions.  The 
contract  relates  almost  wholly  to  the  affections,  and  one  is  not  allow^ed 
to  so  trifle  with  another's  feelings.  He  knows  at  the  time  he  makes 
the  contract  that  if  he  breaks  it  the  other  will  suffer  great  mental 
pain,  and  the  courts,  without  exception,  have  allowed  recovery  in 
such  a  case.  See  Holloway  v.  Griffith,  32  Iowa,  409,  7  Am.  Rep. 
208 ;  Royal  v.  Smith,  -iO  Iowa,  615. 

The  distinction  we  have  pointed  out  is  well  stated  in  1  Suth.  Dam. 
§  92.  Other  exceptions  have  sometimes  been  made,  which  we  need 
not  further  refer  to.  As  said  in  the  case  of  Wadsworth  v.  Telegraph 
Co.,  86  Tenn.  695,  8  S.  W.  574:  "These  illustrations  serve  the  pur- 
pose of  showing  that  in  the  ordinary  contract  only  pecuniary  bene- 


464  COMPENSATORY   DAMAGES.  (Part    5 

fits  are  contemplated  by  the  contracting  parties,  and  that,  therefore, 
the  damages  resulting  from  such  breach  of  contract  must  be  measured 
by  pecuniary  standards,  and  that,  where  other  than  pecuniary  bene- 
fits are  contracted  for,  other  than  pecuniary  standards  should  be  applied 
in  the  ascertainment  of  damages  flowing  from  the  breach."     *     *     * 

Reverting  now  to  the  damages  which  may  be  allowed  if  the  action 
is  treated  as  ex  delicto,  and  to  the  broader  rule  of  damages  in  cases 
of  tort,  we  find  that,  in  very  many  of  these  actions,  damages  are  re- 
coverable for  mental  anguish,  some  of  which  we  will  refer  to  hereafter. 
It  is  conceded  by  appellant's  counsel  that  such  damages  may  in  certain 
cases  be  recovered,  but  they  insist  that  they  are  never  recoverable 
unless  accompanied  by  some  physical  injury.  It  seems  to  us  that,  when 
it  is  conceded  that  mental  suffering  may  be  compensated  for  in  actions 
of  tort,  the  right  of  plaintiff  to  recover  in  this  case  is  established.  Let 
us  look  to  some  of  the  cases  authorizing  recovery  in  such  cases,  and 
see  if  there  are  no  analogies. 

Damages  for  injuries  to  the  feelings  are  given,  though  there  are  no 
physical  injuries,  where  a  person  is  wrongfully  ejected  from  a  train. 
Shepard  v.  Railway  Co.,  77  Iowa,  54,  41  N.  W.  564.  In  actions  for 
slander  and  libel.  Terwilliger  v.  Wands,  17  N.  Y.  54,  72  Am.  Dec. 
420.  For  malicious  prosecution.  Fisher  v.  Hamilton,  49  Ind.  341. 
For  false  imprisonment.  Stewart  v.  Maddox,  63  Ind.  51.  For  crim. 
con.  and  seduction,  and  for  assault.  So  damages  for  injured  feelings 
were  allowed  where  a  conductor  kissed  a  female  passenger  against 
her  will.  Craker  v.  Railway  Co.,  36  Wis.  657.  So,  likewise,  it  has 
been  held  that  the  removal  of  the  body  of  a  child  from  the  lot  in  which 
it  was  rightfully  buried,  to  a  charter  plot,  gives  the  parent  a  right  to 
recover  for  injury  to  his  feelings.  Meagher  v.  Driscoll,  99  Mass.  281, 
96  Am.  Dec.  759.  And  a  widow  may  recover  for  such  suffering  and 
nervous  shock,  against  the  person  who  unlawfully  mutilates  the  dead 
body  of  her  husband,  although  no  actual  pecuniary  damages  are  al- 
leged or  proven.  Larson  v.  Chase,  47  Minn.  307,  50  N.  W.  238,  14 
L.  R.  A.  85,  28  Am.  St.  Rep.  370.  See,  also,  Suth.  Dam.  §  979,  and 
authorities  cited  for  kindred  cases. 

The  wrongs  complained  of  in  these  cases  all  directly  affected  the 
feelings,  and  injury  thereto  proximately  resulted.  But  not  more  so 
than  in  the  case  at  bar,  where  the  injury  to  the  feelings  is  apparent, 
and  suffering  necessarily  followed.  This  rule  of  necessity  applies 
where  the  feelings  are  directly  affected  by  the  nature  of  the  wrong 
complained  of.  It  has  no  application  to  such  mental  suffering  as  in- 
directly results  from  the  commission  of  every  tort. 

Let  us  now  look  to  our  own  cases  for  a  moment,  and  see  what  has 
been  held.  In  the  case  of  Stevenson  v.  Belknap,  6  Iowa,  103,  71  Am. 
Dec.  392,  which  was  an  action  brought  by  a  father  for  the  seduction 
of  his  daughter,  this  court  approved  an  instruction  that  damage  may 
be  given,  not  only  for  his  loss  of  service  and  actual  expenses,  but  also 
on  account  of  the  wounded  feelings  of  the  plaintiff,  and  of  his  anxiety,, 


C'l.  2)  MENTAL   SUB'FERINQ.  465 

as  a  parent  of  other  children,  whose  morals  may  be  corrupted  by  the 
example.  In  the  case  of  McKinley  v.  Railroad  Co.,  44  Iowa,  318,  24 
Am.  Rep.  748,  which  was  an  action  for  an  assault  by  one  of  defend- 
ant's employes  upon  the  plaintiff,  the  lower  court  instructed  the  jury 
that  plaintiff  might  recover,  as  compensatory  damag-es,  not  only  for 
bodily  pain  and  suffering,  but  for  the  outrage  and  indignity  put  upon 
him.     *     *     * 

In  the  quite  recent  case  of  Shepard  v.  Railway  Co.,  77  Iowa,  58, 
41  N.  W.  564,  we  went  still  further,  and  squarely  held  that  damages 
for  mental  suffering  are  recoverable,  although  there  was  no  physical 
pain  or  injury.  In  that  case  we  said:  "If  these  things  [wounded  feel- 
ings] may  be  considered  in  connection  with  physical  suffering,  in 
estimating  actual  damages,  we  know  no  reason  which  forbids  their 
being  considered  in  the  absence  of  physical  suffering.  It  is  said  that 
the  'mental  pain'  contemplated  by  the  court  in  the  case  last  cited  [44 
Iowa,  315,  24  Am.  Rep.  748]  includes  something  more  than  mere 
wounded  feelings  or  wounded  pride,  and  that  the  latter  can  be  consid- 
ered only  where  malice  is  alleged  and  proven,  and  where  there  has  been 
proof  of  actual  bodily  injury.  We  do  not  think  the  claim  is  well  found- 
ed. Humiliation,  wounded  pride,  and  the  like  may  cause  very  acute 
mental  anguish.  The  suffering  caused  would  undoubtedly  be  different 
in  different  persons,  and  no  exact  rule  for  measuring  it  can  be  given. 
In  ascertaining  it,  much  must  necessarily  be  left  to  the  discretion  of 
the  jury,  as  enlightened  by  the  charge  of  the  court.  The  charge  given 
in  this  case,  as  a  whole,  confined  the  jury  to  an  allowance  for  com- 
pensatory damages." 

In  the  case  of  Curtis  v.  Railway  Co.,  87  Iowa,  622,  54  N.  W.  339, 
this  court  squarely  held  that  damages  might  be  recovered  for  mental 
pain  and  suffering,  although  the  damages  for  physical  injury  were 
merely  nominal ;  and  further  held  that  such  damages  were  compen- 
satory, and  not  punitive.  In  the  case  of  Parkhurst  v.  Masteller,  57 
Iowa,  480,  10  N.  W.  864,  which  was  an  action  for  malicious  prosecu- 
tion, this  court  *  *  *  y^^]^  |-1^^^  jj^  such  actions  actual  damages 
would  include  compensation  for  bodily  and  mental  suffering,  and 
clearly  held  that  damages  for  mental  suffering  might  be  recovered 
in  such  cases,  although  entirely  disconnected  from  bodily  suffering  or 
disability.  In  a  case  of  assault  and  battery  (Lucas  v.  Flinn,  35  Iowa, 
9),  this  court  held  that  damages  for  mental  anguish  might  be  allowed 
as  compensation.  In  the  case  of  Paine  v.  Railroad  Co.,  45  Iowa,  569, 
the  rule  *  *  *  was  recognized ;  but  it  was  held  there  was  no  right  of 
recovery  for  injury  to  feelings,  on  account  of  the  peculiar  facts  of  that 
case.  And  the  case  of  Fitzgerald  v.  Railroad  Co.,  50  Iowa,  79,  merely 
follows  the  Paine  Case,  and  holds  that,  under  the  facts,  plaintiff  was 
not  entitled  to  recover.  The  rule  of  the  McKinley  Case  has  never, 
to  our  knowledge,  been  doubted  by  any  later  decision.  In  the  case 
of  Stone  V.  Railroad  Co.,  47  Iowa,  88,  29  Am.  Rep.  458,  it  was  Held 
Gilb.Dam.— 30 


466  COMPENSATORY  DAMAGES.  (Part    5 

that  the  action  in  that  case,  owing  to  its  peculiar  facts,  was  an  action 
for  breach  of  contract;  and  that  damages  for  mental  suffering  weie 
not  recoverable,  and  in  this  case  it  is  said:  "Insult  and  abuse  accom- 
panying a  breach  of  contract  cannot  affect  the  amount  of  recovery 
in  such  actions.  ,  If  the  action  is  based  upon  a  wrong,  the  jury  are 
permitted  to  consider  injury  to  feelings,  and  many  other  matters 
which  have  no  place  in  actions  to  recover  damages  for  breach  of  con- 
tracts"; citing  Walsh  v.  Railway  Co.,  42  Wis.  23,  24  Am.  Rep.  376. 
It  is  enough  to  say  here  that  the  action  at  bar  is  ex  delicto,  or  that 
damages  may  be  recovered  as  if  it  were,  under  our  system  of  Code 
pleading.     *     *     * 

From  these  cases  it  is  apparent  that  in  actions  of  tort  this  court  has 
frequently  announced  the  rule  that  damages  for  mental  suffering 
may  be  recovered,  although  there  is  no  physical  injury.  And,  if  this 
be  so,  why  is  not  this  a  case  where  they  ought  to  be  allowed  ?  It  can- 
not be  possible  that  here  is  a  legal  wrong  for  which  the  law  affords 
no  remedy.  The  wrong  is  plain,  the  injury  is  apparent,  and  we  think 
the  law  affords  a  remedy,  for  compensatory  damages,  under  the  rules 
above  given.  It  must  not  be  understood  to  follow  that,  in  all  actions 
ex  delicto,  damages  for  mental  suffering  may  be  allowed.  \There  must 
be  some  direct  and  proximate  connection  between  the  wrong  done 
and  the  injury  to  the  feelings,  to  justify  a  recovery  for  mental  an- 
guish. But,  when  there  is  this  connection  so  manifest  as  in  the  case 
at  bar,  we  think  such  damages  ought  to  be  allowedj  It  is  very  ap- 
propriately said,  however,  in  one  of  the  cases  which  has  been  cited, 
that  "great  caution  should  be  used  in  the  trial  of  cases  like  this,  as  it 
will  be  so  easy  and  natural  to  confound  the  corroding  grief  occa- 
sioned by  the  loss  of  a  parent  or  other  relative  with  the  disappoint- 
ment and  regret  occasioned  by  the  fault  or  neglect  of  the  company, 
for  it  is  only  the  latter  for  which  recovery  may  be  had;  and  the  at- 
tention of  juries  might  well  be  directed  to  this  fact." 

It  is  not  necessary  for  us  to  determine  on  which  theory  damages 
for  mental  anguish  are  recoverable.  If  we  find  they  are  recoverable, 
either  in  an  action  for  breach  of  contract,  or  by  reason  of  a  breach  of 
public  duty,  then  the  instruction  given  by  the  lower  court  was  correct, 
and  should  be  sustained.  It  will  be  noticed  that,  in  some  of  the  cases 
holding  to  a  contrary  doctrine  from  that  here  announced,  recovery 
was  denied  because  of  the  form  of  the  action ;  that  is  to  say,  it  was 
held  that  the  action  in  the  particular  case  was  for  breach  of  contract, 
and  that  damages  for  mental  suffering  were  not  recoverable  in  such 
an  action.  Whether  they  would  be  recoverable  in  actions  ex  delicto 
or  not  was  not  determined.  Let  us  look  for  a  moment  to  some  of  the 
objections  urged  to  such  a  rule  as  we  have  announced. 

First.  It  is  said  that  such  suffering  is  speculative  and  remote.  We 
have,  as  we  think,  answered  this  by  showing  that  in  actions  of  this 
kind  it  is  direct  and  proximate  to  the  wrong  complained  of. 


Cll.  2)  MENTAL    SUFFERING.  467 

Second.  It  is  urged  that  such  damages  are  sentimental,  are  vague 
and  shadowy,  and  that  there  is  no  standard  by  which  an  injury  can 
be  justly  compensated  or  approximately  measured.  This  objection 
is  answered  if  we  find  any  case  in  which  such  damages  are  allowed, 
for  if  they  may  be  allowed  in  one  kind  of  case  they  may  in  all,  so  far 
as  this  objection  is  concerned.  We  have  already  seen  numbers  of  cases, 
both  from  this  and  other  states,  wherein  it  is  held  that  damages  for 
mental  suffering,  independent  of  physical  injury,  may  be  recovered.  It 
is  conceded  by  counsel  that  damages  can  be  recovered  for  mental  suf- 
fering when  accompanied  by  physical  pain  or  bodily  suffering.  If 
this  be  true,  then  let  us  ask  how  they  can  be  any  more  accurately 
measured  when  so  accompanied  than  when  not.  When  it  is  once  con- 
ceded that  mental  anguish  can  be  considered,  and  compensation  made 
therefor,  then  the  objection  last  urged  falls  to  the  ground. 

Third.  It  is  said  there  is  no  principle  on  which  such  damages  can 
be  recovered.  We  have  endeavored  to  show,  to  the  best  of  our  ability, 
that  there  is  abundant  authority  to  justify  a  recovery  in  such  cases. 

Fourth.  It  is  contended  that  the  rule  opens  up  a  vast  and  fruitful 
field  for  speculative  litigation.  We  have  endeavored  to  so  guard  and 
limit  the  rule  that  there  may  be  no  mistaking  its  operation  and  effect. 
If  recovery  is  for  breach  of  the  contract,  then  it  can  only  be  had  be- 
cause of  the  subject-matter — the  fact  that  it  is  intelligence  that  is 
transmitted,  and  the  feelings  only  affected.  And,  if  the  recovery  is 
had  because  it  is  a  tort,  then  a  somewhat  similar  limitation  is  made, 
which  we  have  tried  to  make  apparent.  If,  as  thus  limited,  the  rule 
opens  up  a  vast  and  fruitful  field  of  litigation,  it  is  only  because  tele- 
graph companies  fail  to  do  their  duty.  We  cannot  think  that  a  rule 
which  will  tend  to  make  telegraph  companies  more  careful  in  the  mat- 
ter of  delivering  their  messages  will  be  fraught  with  such  fearful 
results  as  counsel  imagine.  The  single,  plain  duty  of  a  telegraph  com- 
pany is  to  make  transmission  and  delivery  of  messages  intrusted  to 
it  with  promptitude  and  accuracy.  When  that  is  done  its  responsi- 
bility is  ended.  When  it  is  omitted,  through  negligence,  the  company 
should  answer  for  all  injury  resulting,  whether  to  the  feelings  or  the 
purse,  one  or  both,  subject  to  the  proviso  that  the  injury  must  be 
the  natural  and  direct  consequence  of  the  negligent  act.  We  cannot 
conceive  of  any  danger  in  such  a  rule.  It  seems  to  us  to  be  in  ac- 
cord with  the  enlightened  spirit  of  modern  jurisprudence,  and  that 
in  actual  practice  no  evil  can  result  therefrom.  Juries  may  be  prone, 
in  cases  of  this  kind,  to  place  their  estimates  high ;  but  the  judge  is 
ever  present,  with  a  restraining  power,  ample  to  prevent  unconscion- 
able and  unjust  verdicts.     ♦     *     * 


468  COMPENSATORY  DAMAGES.  (Part    5 


CONNELL  V.  WESTERN  UNION  TELEGRAPH  CO. 

(Supreme  Court  of  Missouri,  1893.    116  Mo.  34,  22  S.  W.  345,  20  L.  R,  A.  172, 

38  Am.  St.  Rep.  575.) 

GanTT,  p.  J.^"^  This  is  an  action  for  damages  for  the  negligence  of 
defendant  in  failing  to  deliver  to  plaintiff  the  following  telegraphic 
message  sent  to  him  by  his  wife :  "Sedalia,  Mo.,  Dec.  13,  1889.  To 
Matt  Connell,  Soldiers'  Home,  Leavenworth,  Kansas :  Your  child  is 
dying.  Mary."  The  plaintiff  alleged  that  his  wife  paid  the  customary 
charge,  50  cents,  for  its  transmission,  and  that  he  had  refunded  that 
sum  to  her.  Plaintiff  then  alleges  that  his  child  died  on  the  24th  day 
of  December,  1889,  "and  that  if  said  message  had  been  transmitted 
and  delivered  with  any  degree  of  diligence  or  promptness  whatever,  he 
would  have  been  able  to  be  present  with  his  said  child  during  its  last 
sickness,  and  at  its  death,  and  that  by  reason  of  the  great  negligence 
and  carelessness  of  defendant  in  failing  to  deliver  said  message,  and  of 
his  being  thereby  deprived  of  being  with  his  said  child  during  its  last 
sickness,  and  at  its  death."     *     *     * 

The  sole  question  discussed  by  the  appellant  in  this  case  is  this : 
"Where  a  telegraph  company  is  advised  by  the  contents  of  a  message 
that  great  mental  suffering  and  pain  will  naturally  result  from  its 
neglect  to  transmit  and  deliver  the  message  promptly,  can  damages  be 
recovered  by  the  sendee  for  such  mental  agony  and  distress,  caused  by 
a  failure  to  promptly  transmit  and  deliver?"  The  proposition,  it  will 
be  observed,  relates  simply  to  damages  arising  from  a  -breach  of  con- 
tract. Prior  to  this  time  there  had  been  but  one  opinion  expressed  in 
the  decisions  of  this  court,  and  that  is  clearly  adverse  to  the  conten- 
tion of  the  appellant,  and  this  is  not  questioned  by  the  able  counsel 
who  represents  the  appellant;  but  he  urges  that,  inasmuch  as  teleg- 
raphy is  of  comparatively  recent  origin,  we  should,  in  view  of  the 
function  it  performs,  make  an  exception  in  the  construction  of  the  con- 
tracts made  by  those  engaged  in  it,  and  the  damages  which  flow  from  a 
breach  thereof.  That  an  action  for  mental  anguish,  disconnected  with 
physical  injury,  for  the  breach  of  a  contract,  could  not  be  maintained 
at  common  law,  with  the  single  exception  of  the  breach  of  a  marriage 
contract,  we  think,  is  abundantly  established.  Wood,  Mayne,  Dam.  75 ; 
Lynch  V.  Knight,  9  H.  L.  Cas.  577.     *     *     * 

(The  general  rule  is  that  "pain  of  mind,  when  connected  with  bodily 
injury,  is  the  subject  of  damages ;  but  it  must  be  so  connected  in  or- 
der to  be  included  in  the  estimate,  unless  the  injury  is  accompanied 
by  circumstances  of  malice,  insult,  or  inhumanity."  *  *  *  The 
rule  announced  is  in  strict  harmony  with  that  of  the  courts  of  last  resort 
in  our  sister  states,  until,  in  1881,  the  Supreme  Court  of  Texas,  in  So 
Relle  V.  Telegraph  Co.,  55  Tex.  308,  40  Am.  Rep.  805,  announced  the 
doctrine  that  the  sender  of  a  social  telegram  could  recover  for  the 

2  6  Part  of  ttie  opinion  is  omitted. 


^  "  Ch.  2)  MENTAL    SUFFERING.  469 

mental  anguish  caused  by  delay  in  its  delivery.  The  authorities  relied 
upon  by  tlie  Supreme  Court  of  Texas  in  that  case  were  actions  for 
physical  injuries,  in  which  the  mental  agony  formed  an  inseparable 
part — a  doctrine  never  questioned  in  this  state  since  Porter  v.  Railroad 
Co.,  71  Mo.  66,  36  Am.  Rep.  454.     *     *     * 

The  Texas  case  has  been  followed  in  that  state  in  a  great  number  of 
cases,  and  has  been  adopted  in  Indiana,  North  Carolina,  Kentucky, 
Alabama,  and  Tennessee.  On  the  other  hand,  this  new  departure  has 
been  vigorously  assailed  and  denied  by  the  Supreme  Courts  of  Mis- 
sissippi, Georgia,  Kansas,  and  in  Dakota,  and  in  a  most  luminous  dis- 
senting opinion  by  Judge  Lurton,  of  the  Supreme  Court  of  Tennessee, 
now  judge  of  the  United  States  Circuit  Court  for  the  Sixth  circuit,  in 
which  Folkes,  J.,  concurred.  The  majority  of  the  Supreme  Court  of 
Tennessee  do  not  go  to  the  length  contended  for  by  the  appellant 
here.  The  majority  lay  great  stress  upon  the  fact  that  by  virtue  of  a 
statute  in  Tennessee  a  cause  of  action  is  given  to  the  aggrieved  party 
for  damages  for  failure  to  deliver  any  message.  Hence  they  argue 
that,  as  the  party  has  the  right  to  some  damages  by  virtue  of  the  stat- 
ute, they  conclude  they  may  add  the  anguish  of  mind  as  an  element. 
It  is  impossible  to  escape  the  feeling  that  the  very  able  judges  were  re- 
sorting to  a  fiction  to  justify  them  in  supporting  the  action.  The  case 
of  So  Relle  v.  Telegraph  Co.,  55  Tex.  310,  40  Am.  Rep.  805,  has  been 
nowhere  more  flatly  repudiated  than  by  the  Supreme  Court  of  Texas 
itself,  in  Railway  Co.  v.  Levy,  59  Tex.  563,  46  Am.  Rep.  278.  Judge 
(Stayton,  in  an  able  and  lucid  discussion  of  the  authorities,  demon- 
strates "that  the  cases  in  which  damages  have  been  allowed  for  mental 
distress  *  *  *  y^j^LS  the  incident  to  a  bodily  injury  sufifered  by  the 
distressed  person,  or  cases  of  injury  to  reputation  or  property,  in 
which  pecuniary  damage  was  shown,  or  the  act  such  that  the  law  pre- 
sumes some  damage,  however  slight,  from  the  act  complained  of.  They 
are  not  cases  in  which  the  bodily  injury  or  othet^wrong  was  suffered 
by  one  person,  and  the  mental  distress  by  another."     *     *     * 

But  it  is  said  damages  for  injury  to  the  feelings  have  always  been 
allowed  in  actions  founded  upon  a  breach  of  promise  to  marry,  and 
this  is  true  in  this  as  in  other  states.  Wilbur  v.  Johnson,  58  Mo.  600 ; 
Bird  v.  Thompson,  96  Mo.  424,  9  S.  W.  788.  But  it  has  always  been 
regarded  as  an  exception  to  the  rule.  In  this  action  plaintiff's  pecuniary 
loss  forms  an  important  element.  The  action  is  of  common-law  origin, 
and  at  common  law  the  husband,  on  marriage,  became  liable  for  the 
wife's  debts,  and  for  support  in  a  manner  and  style  commensurate  with 
his  own  social  standing,  and  evidence  of  his  station  in  life  and  financial 
condition  has  always  been  admitted.  Wilbur  v.  Johnson,  supra.  As 
was  well  said  by  Cooper,  J.,  in  Telegraph  Co.  v.  Rogers,  68  Miss.  748, 
9  South.  823,  13  L.  R.  A.  859,  24  Am.  St.  Rep.  300:  "This  action, 
though  in  form  one  for  the  breach  of  contract,  partakes  in  several 
features  of  the  characteristics  of  an  action  for  the  willful  tort;  and, 
though  the  damages  recoverable  for  the  plaintiff  for  mental  suffering 


470  COMPENSATORY   DAMAGES.  (Part    5 

are  spoken  of  as  'compensatory,'  the  fervent  language  of  the  courts 
indicates  how  shadowy  is  the  line  that  separates  them  from  those  strict- 
ly pecuniary."  "Especially  those  cases  in  which  evidence  of  seduction 
is  admitted  to  ascertain  the  damages.  So  much,  indeed,  does  the  motive 
of  the  defendant  enter  into  the  question  of  damages,  that  in  Johnson 
V.  Jenkins,  24  N.  Y.  252,  the  defendant  was  permitted  to  give  in  evi- 
dence, in  mitigation  of  damages,  the  fact  that  he  refused  to  consum- 
mate the  marriage  because  of  the  settled  opposition  of  his  mother,  who 
was  in  infirm  health." 

These  considerations  sufficiently  indicate  the  reasons  that  actuated 
the  courts  to  make  this  exception.  Few  precedents  for  this  action  will 
be  found  where  the  defendant  was  impecunious.  The  learned  coun- 
sel has  collected  various  other  cases  in  which  mental  anguish  was  rec- 
ognized as  an  element  of  damage,  and  concludes  with  the  query,  "If 
allowed  in  these,  why  not  in  this  action?"  Let  us  consider  these  in  the 
order  of  his  brief: 

Assault  and  battery.  Under  this  head  is  cited  the  case  of  Craker  v. 
Railway  Co.,  36  Wis.  657,  17  Am.  Rep.  504.  In  that  case  the  conductor 
of  a  train  seized  upon  the  moment  when  the  other  employes  were  ab- 
sent from  the  car  to  take  improper  liberties  with  a  lady  passenger. 
The  evidence  showing  that  he  placed  his  arm  around  her,  and,  against 
her  vehement  protests,  kissed  her.  It  was  a  clear  physical  violation 
of  her  person,  which  the  courts  have  ever  held  constituted  an  assault 
and  battery,  and  actionable.  The  law  redresses  such  a  wrong  in  its 
initial  stages.  The  protection  of  the  person  has  ever  been  an  object  of 
great  solicitude  to  the  common  law.  The  present  ability  of  actual 
violence  often  justifies  recourse  to  extreme  measures  in  preventing  a 
consummation  of  threatened  wrong  to  the  person.  The  cases  cited 
under  this  head  clearly  add  no  weight  to  plaintiff's  claim. 

The  cases  of  malicious  prosecution  and  false  imprisonment  come  un- 
der that  general  class  of  willful  wrong  to  the  person,  affecting  the 
liberty,  character,  reputation,  personal  security,  and  domestic  relations. 
Judge  Lumpkin,  in  Chapman  v.  Telegraph  Co.,  88  Ga.  763,  15  S.  E. 
SOI,  17  L.  R.  A.  430,  30  Am.  St.  Rep.  183,  disposes  of  the  argument  at- 
tempted to  be  drawn  from  this  class  as  follows :  "In  an  action  for 
■wrongful  attachment,  on  the  ground  that  the  defendant  was  about  to 
dispose  of  his  property  with  intent  to  deprive  his  creditors,  it  was  held 
(by  a  divided  court)  that  the  mortification  was  a  part  of  the  actual 
damages.  Byrne  v.  Gardner,  33  La.  Ann.  6.  Of  course  it  was  a  case 
of  serious  injury  to  the  plaintiff's  business  standing,  and  therefore, 
even  if  sound,  is  no  authority  on  the  present  question.  %n  an  action 
for  false  imprisonment,  or  for  malicious  arrest  and  prosecution,  mental 
anguish  has  been  held  a  proper  subject  for  compensatory  damages^ 
Fisher  v.  Hamilton.  49  Ind.  341;  Stewart  v.  Maddox,  63  Ind.  51; 
Coleman  v.  Allen,  79  Ga.  637,  5  S.  E.  204,  11  Am.  St.  Rep.  449.  Of 
course,  such  injuries  are  essentially  willful,  and,  besides,  are  violations 
•of  the  great  right  of  personal  security  or  personal  liberty." 


471 
(3h    2)  MENTAL    SUFFERING. 

As  to  the  action  of  seduction,  every  lawyer  knows  that  proof  of  some 
service  by  the  daughter  has  been  invariably  required  to  sustain  it;  ana 
the  same  rule  is  rigidly  adhered  to  in  Magee  v.  Holland  27  N.  J.  Law 
8(J   72  Am  Dec.  341,  to  which  we  are  cited  by  counsel,  for  the  forcible 
abduction  of  a  daughter.    In  the  case  of  enticing  away  a  daughter,  we 
are  referred  to  Stowe  v.  Heywood,  7  Allen  (Mass.)  118.    The  cour 
permitted  damages  for  mental  suffering  on  the  express  ground  that 
it  was  a  willful  injury,  and  declined  to  say  whether  such  damages 
could  ever  be  recovered  for  negligence  alone,  as  in  the  case  at  bar. 
This  case  illustrates  the  greatest  difficulty  in  estimating  damages  for 
mental  suffering.     Judge  Metcalf  says:    "Mental  suffering  canno    be 
measured  aright  by  outward  manifestations,  for  there  may  be  a  show 
of  great  distress  where  little  or  none  is  felt.    And  great  distress  may 
be  concealed,  and  borne  in  silence,  with  an  apparently  quiet  mind.    Ab 
inquieto  s^pe  simulatur  quies."    "And  we  nowhere  find  that  any  other 
exddence  of  mental  suffering,  besides  that  of  the  injury  which  was 
the  alleged  cause  of  action,  was  ever  before  admitted        The  court 
reversed  the  case  because  the  trial  court  permitted  evidence    tending 
to  show"  plaintiff  suffered  from  "pain  and  anxiety  of  mind. 

It  is  hardly  necessary  to  add  that  in  a  case  of  libel  or  slander,  if  the 
words  are  not  actionable  per  se,  special  damages  must  be  alleged  and 
proved  When  they  are  actionable  per  se,  they  are  construed  because 
of  their  evident  tendency  to  degrade  the  citizen  in  the  estimation  of  his 
neighbors,  and  in  both  cases  they  are  malicious.     * 

Speaking  for  ourselves,  we  are  satisfied  that  the  common  law   deny- 
ing an  action  for  mental  distress  alone,  was  founded  upon  the  best  o 
reason,  and  an  enlightened  public  policy.    And  we  question  if  the  real 
reasons  were  ever  more  clearly  and  satisfactorily  stated  than  by  Judge 
Uirton,  which  opinion  we  adopt:    "The  reason  why  an  independent 
action  for  such  damages  cannot  and  ought  not  to  be  sustained  is  found 
in  the  remoteness  of  such  damages,  and  in  the  metaphysical  character 
of  such  an  injury,  considered  apart  from  physical  pam.     Such  injuries 
are  generally  more  sentimental  than  substantial.     Depending  largely 
upon  physical  and  nervous  condition,  the  suffering  of  one  under  pre- 
cisely the  same  circumstances  would  be  no  test  of  the  suffering  of  an- 
other     Vague  and  shadowy,  there  is  no  possible  standard  by  which 
such  an  injury  can  be  justly  compensated,  or  even  approximately  meas- 
ured    Easily  simulated,  and  impossible  to  disprove,  it  falls  within  all 
the  objections  to  speculative  damages,  which  are  universally  excluded 
because  of  their  uncertain  character.     That  damages  so  imaginary,  so 
metaphysical,   so  sentimental  shall  be  ascertained  and  assessed  by  a 
jury  with  justness,  not  by  way  of  punishment  to  the  defendant   but  as 
mere  compensation  to  plaintiff,  is  not  to  be  expected.     That  the  grief 
natural  to  the  death  of  a  loved  relative  shall  be  separated  from  the  add- 
ed  grief   and    anguish   resulting    from   delayed   information   of    such 
mortal  illness  or  death,  and  compensation  given  for  the  latter  only    ir, 
the  task  imposed  by  the  law,  as  determined  by  the  majority  [of  the  bu- 


472  COMPENSATORY  DAMAGES.  (Part    5 

preme  Court  of  Tennessee].  *  *  *  It  is  legitimate  to  consider 
the  evils  to  which  such  a  precedent  logically  leads.  Upon  what  sound 
legal  considerations  can  this  court  refuse  to  award  damages  for  injury 
to  the  feelings,  mental  distress  and  humiliation,  when  such  injury  re- 
sults from  the  breach  of  any  contract?  Take  the  case  of  a  debtor  who 
agrees  to  return  the  money  borrowed  on  a  certain  day,  who  breaches 
his  agreement  willfully,  with  knowledge  that  such  breach  on  his  part 
will  probably  result  in  the  financial  ruin  and  dishonor  of  his  disapn 
pointed  creditor.  Why  shall  not  such  a  debtor,  in  addition  to  the  debt 
and  the  interest,  also  compensate  his  creditor  for  this  ruin,  or  at  least 
for  his  mental  sufferings?  *  *  *  Upon  what  principle  can  we 
longer  refuse  to  entertain  an  action  for  injured  feelings  consequent  up- 
on the  use  of  abusive  and  defamatory  language,  not  charging  a  crime, 
or  resulting  in  special  pecuniary  damages?  Mental  distress  is,  or  may 
be  in  some  cases,  as  real  as  bodily  pain,  and  it  as  certainly  results  from 
language  not  amounting  to  an  imputation  of  crime ;  yet  such  actions 
have  always  been  dismissed  as  not  authorized  by  the  law  as  it  has 
come  down  to  us,  and  as  it  has  been  for  all  time  administered." 

Why,  if  this  rule  is  to  become  the  law  of  this  state  in  regard  to  this 
contract,  shall  it  not  apply  to  all  disappointments  and  mental  sufferings 
caused  by  delays  in  railroad  trains?  Telegraph  companies  are  com- 
mon carriers;  so  are  railroad  companies;  and  yet  this  court,  in  the 
Trigg  Case,  held  the  company  not  liable  for  mental  anguish,  as  an 
independent  cause  of  action  for  a  mere  act  of  negligence.  A  similar 
conclusion  was  also  reached  in  the  United  States  Circuit  Court  for  the 
Fourth  circuit  in  Wilcox  v.  Railroad  Co.,  52  Fed.  26i,  3  C.  C.  A.  73, 
17  L.  R.  A.  804,  where  the  plaintiff  made  a  special  contract  for  a  train 
to  take  him  to  the  bedside  of  a  sick  parent.  The  court  held  that  the 
trouble  of  mind  caused  by  the  delay  at  a  railroad  station  could  not  be 
made  the  basis  of  an  action,  saying:  "But  we  know  of  no  decided  case 
which  holds  that  mental  pain  alone,  unattended  by  injury  to  the  per- 
son, caused  by  simple  negligence,  can  sustain  an  action.  The  plaintiff 
was  the  subject  of  two  mental  pains — one,  for  the  condition  of  the  sick 
person;  the  other,  from  the  delay  at  the  station — the  latter,  only,  be- 
ing the  subject  of  this  action.  It  cannot  be  pretended  that  damages 
from  the  latter  cause  of  'anxiety'  and  'suspense' — uncertain,  indefinite, 
undefinable,  unascertainable,  dependent  so  largely  on  the  peculiar  tem- 
perament of  the  person  suffering  the  delay — was  in  the  contemplation 
of  the  defendant  when  it  entered  into  the  contract)"  Griffin  v.  Col- 
ver,  16  N.  Y.  489,  69  Am.  Dec.  718;  Telegraph  Co.^v.  Hall,  124  U.  S. 
444,  8  Sup.  Ct.  577,  31  L.  Ed.  479. 

But,  as  before  said,  if  we  establish  the  rule  as  to  one  common  carrier 
or  private  person,  with  what  sort  of  consistency  can  we  refuse  to  ex- 
tend it  to  all?  The  courts  of  Texas  have  already  spoken  of  a  similar 
case  as  "intolerable  litigation."  We  see  no  reason  for  making  this 
innovation  or  exception.  The  Legislature  has  imposed  a  penalty  for 
each  infraction  of  its  duty  in  delaying  a  message,  and  it  seems  very 


Ch.  2)  MENTAL    SUFFERING.  473 

clear  to  us  that,  if  it  is  to  become  the  policy  of  the  state  to  adopt  this 
new  rule,  the  Legislature,  and  not  this  court,  should  do  it.  The  common 
law  has  always  attempted  to  deal  with  the  citizen,  and  his  rights  and 
wrongs,  in  a  practical  way,  and  the  declared  object  of  awarding  dam- 
ages is  to  give  compensation  for  pecuniary  loss.  The  right,  in  a  civil 
action,  to  inflict  punishment  by  way  of  punitory  damages,  has  been  ably 
controverted.  The  allowance  of  damages  for  wounded  feelings,  when 
they  are  the  concomitant  or  result  of  a  physical  injury,  is  placed 
rightfully  on  the  ground  that  the  mind  is  as  much  a  part  of  the  body 
as  the  bones  and  muscles,  and  an  injury  to  the  body  included  the  whole, 
and  its  effects  were  not  separable ;  but  the  experience  of  every  judge 
and  lawyer  teaches  him  how  unsatisfactory,  in  these  personal  injury 
cases,  are  the  verdicts  of  juries.  They  are  utterly  inconsistent,  and  the 
courts  do  not  attempt  to  justify  these  inconsistencies  upon  any  other 
theory  than  that  it  is  the  sole  province  of  the  jury  to  fix  the  amount. 
The  result  is  that,  in  nearly  every  appeal  that  reaches  this  court,  one 
ground  for  reversal  is  the  excessive  damage  awarded;  and  the  right 
of  this  court  to  interfere  at  all  on  this  ground  is  seriously  challenged.  It 
is  no  uncommon  thing  to  have  the  appellee  voluntarily  enter  a  remit- 
titur to  save  his  verdict  from  the  charge  of  passion  or  prejudice. 

Under  these  circumstances,  is  it  wise  to  venture  upon  the  far  more 
speculative  field  of  mental  anguish,  without  guide  and  without  com- 
pass? We  think  not.  We  have  examined  the  cases  in  the  courts  of 
Kentucky,  Indiana,  Tennessee,  Alabama,  and  North  Carolina.  They 
are  all  based  upon  the  So  Relle  Case,  in  55  Tex.  308,  40  Am.  Rep.  805, 
which,  we  have  shown,  stands  upon  no  previous  adjudication,  but  is 
opposed  by  the  Levy  Case,  59  Tex.  563,  46  Am.  Rep,  278,  which,  to 
our  minds,  completely  refutes  it.     *     *     *  ^a 


CHAPPELL  V.  ELLIS  et  al. 

(Supreme  Court  of  North  Carolina,  1898.     123  N.  C.  259,  31  S.  E.  709,  68  Am. 

St.  Rep.  822.) 

Douglas,  J."  This  is  an  action  to  recover  damages  for  the  un- 
lawful seizure  and  detention  of  personal  property,  and  also  for  mental 
suffering  caused  thereby.  The  plaintiff  *  *  *  alleges  "that  she  is 
old  and  infirm,  having  reached  the  age  of  64  years,  and  has  to  depend 
upon  her  own  labor  and  exertion  for  a  support;  and  after  the  re- 
moval of  the  said  property,  *  *  *  she  had  nothing  upon  which  to 
live,  and  no  home  to  shelter  her  body;  that  by  the  wrongful  act 
*     *     *     in  taking  from  her  the  said  property,  contrary  to  the  writ 

2  6  There  are  many  cases  involving  this  point.  The  great  weight  of  authori- 
ty is  with  Connell  v.  W.  U.  T.  Co.,  110  Mo.  34.  22  S.  AY.  345,  20  L.  R.  A.  1(2, 
38  Am.  St.  Rep.  575  (1893).  See,  also,  W.  U.  T.  Co.  v.  Rogers,  68  Miss.  <4S, 
9  South.  823,  13  L.  R.  A.  859.  24  Am.  St.  Rep.  300  (1891). 

27  Part  of  the  opinion  is  omitted. 


474  COMPENSATORY  DAMAGES.  (Part    5 

aforesaid,  and  without  authority  in  law,  and  depriving  her  of  the  only 
means  of  support  she  then  had,  in  her  advanced  age  in  Hfe,  she  has 
suffered  greatly  in  body  and  mind,  to  her  damage  $500."     *     *     * 

The  doctrine  of  mental  suffering,  or  "mental  anguish,"  as  we  prefer 
to  call  it,  as  indicating  a  higher  degree  of  suffering  than  arises  from 
mere  disappointment  or  annoyance,  contemplates  purely  compensatory 
damages,  and,  as  far  as  we  are  aware,  has  never  been  applied  to  cases 
like  that  at  bar.  This  case  would  come  under  the  rule  of  exemplary, 
punitive,   or   vindictive   damages   as   they   are   variously   denominat- 

The  question  of  exemplary  damages  does  not  appear  to  have  been 
raised  in  the  trial  of  the  action,  as  no  such  issue  or  instruction  was 
asked  by  either  party.  The  theory  of  the  plaintiff  was  the  recovery 
of  compensatory  damages  for  mental  anguish,  under  the  rule  laid 
down  in  Young  v.  Telegraph  Co.,  107  N.  C.  370,  11  S.  E.  1044,  9 
L.  R.  A.  669,  22  Am.  St.  Rep.  883,  and  analogous  cases.  This  rule 
cannot  be  extended  to  the  case  at  bar.  (The  plaintiff  is  entitled  to 
recover  all  her  actual  damages  sustained  irom  the  wrongful  act  of 
the  defendants,  including  not  only  the  value  of  the  property  not  re- 
turned, but  also  whatever  damages  may  have  accrued  from  its  seizure 
and  detention.  Furthermore,  she  may  be  allowed  exemplary  damages, 
in  the  discretion  of  the  jury,  if  such  circumstances  of  aggravation  are 
shown  as  would  bring  her  within  the  rule ;  but  her  case  does  not 
come  within  the  doctrine  of  "mental  anguish. '1  It  is  true  the  two  doc- 
trines are  somewhat  similar,  inasmuch  as  they  recognize  suffering  other 
than  physical  or  pecuniary;  but  they  are  so  widely  distinguished  in 
their  application  that  they  are  universally  recognized  as  distinct  prin- 
ciples, wherever  they  are  recognized  at  all. 

It  is  urged  on  behalf  of  the  plaintiff  that  this  case  should  be  gov- 
erned by  the  principles  laid  down  in  Cashion  v.  Telegraph  Co.,  123  N. 
C.  267,  31  S.  E.  493.  We  see  no  resemblance.  Our  opinion  in  Cash- 
ion's  Case  was  hinged  on  the  solemn  fact  of  death  and  the  associa- 
tions inseparable  from  the  final  severance  of  all  earthly  ties  by  an  im- 
mortal spirit.  The  anguish  of  a  mother  bending  over  the  body  of 
her  child,  every  lock  of  whose  sunny  hair  is  entwined  with  a  heart- 
string,  and  kissing  the  cold  lips  that  are  closed  forever,  cannot  come 
within  the  range  of  comparison  with  any  mental  suffering  caused  by 
the  loss  of  a  pig.  We  are  not  insensible  to  the  pitiable  condition  of 
the  plaintiff,  thrown  upon  the  highway  without  snelter,  and  with  but 
little  to  eat ;  but  we  must  remember  that  her  shelterless  condition, 
which  probably  caused  the  greater  part  of  her  distress,  was  the  result 
of  a  lawful  eviction.  Charity  would  have  dictated  a  different  course, 
but  that  great  virtue  is  not  enforceable  in  a  court  of  law.     *     *     *  ^* 

2B  Accord:     Morris  v.  Williford  (Tex.  Civ.  App.)  70  S.  W.  228  (1902). 


Ch.  2) 


MENTAL    SUFFERING. 


475 


HEWLETT  V.  GEORGE. 

(Supreme  Court  of  Mississippi,  1891.     68  Miss.  703,  9  South.  885.  13  L.  R.  A. 

682.) 

Sallie  A.  Hewlett,  a  minor,  brought  this  action  by  her  next  friend, 
against  George,  as  executor  of  her  mother,  Sarah  A.  Ragsdale,  for 
having  willfully  and  maliciously  caused  her  to  be  imprisoned  for  ten 
days  in  the  East  Mississippi  Insane  Asylum,  pursuant,  as  plaintiff  al- 
leged, to  a  plot  to  get  control  of  her  property.  Plaintiff  was  allowed 
by  the  court  below  to  recover  only  $200,  which  had  been  paid  by  her 
to  procure  her  release  from  the  asylum. 

Woods,  J.^®  *  *  *  ^^le  jury  was  told  that  a  recovery  might 
be  had  for  actual  damages,  but  by  the  second  refused  instruction  of 
the  plaintiff  actual  damages  were  held  not  to  include  compensation 
for  mental  suffering  and  pain,  the  sense  of  humiliation,  shame,  and 
disgrace,  and  injury  to  reputation,  inflicted  upon  and  endured  by 
plaintiff.  Here  was  actual  damage  to  the  extent  of  $200,  and  actual 
damage  for  11  days  of  time  lost  during  confinement  in  the  asylum,  and 
to  these  should  have  been  added  damages  for  mental  pain  and  suf- 
fering, shame,  and  mortification,  and  injury  to  character.  Surely 
these  injuries  were  real  ones,  and  compensation  for  these  would  have 
been  an  award  of  actual  damages.  Compensatory  and  actual  damages 
are  one,  and  compensation  for  wrongs  done  to  one's  character  is  in 
no  sense  punitory.  We  cannot  consent  that  actual  damages  in  this 
case  must  be  confined  to  the  few  dollars  and  cents  shown  to  have  been 
expended  by  plaintiff  to  secure  her  release  from  the  asylum,  and  that 
no  compensatory  damages  were  awardable  for  shame  and  anguish 
and  hurt  to  character.  On  this  point  we  are  of  opinion  the  action 
of  the  trial  court  was  erroneous,  and  that  its  judgment  must  be  re- 
versed.    *     *     * 


PRIME  v.  EASTWOOD. 

(Supreme  Court  of  Iowa,  1877.     45  Iowa,  640.) 

This  is  an  action  for  the  recovery  of  damages  for  slanderous  words 
alleged  to  have  been  spoken  by  defendant  concerning  plaintiff,  char- 
ging plaintiff  with  stealing  defendant's  hogs. 

Day,  C.  J.""  *  *  *  fiie  plaintiff,  against  defendant's  objection, 
was  permitted  to  prove  that,  in  consequence  of  the  charge,  he  had 
been  troubled,  and  suffered  mental  anxiety.  If  this  testimony  was  at 
all  admissible  it  must  have  been  for  the  purpose  of  aggravating  the 
<lamages.  The  action  of  slander  is  given  for  injuries  affecting  the 
reputation.  In  Tcrwilliger  v.  Wands,  17  N.  Y.  54,  72  Am.  Dec.  420, 
it  was  held  that  special  damages,  to  support  an  action  for  defamatory 


28  Part  of  the  opinion  is  omitted. 


476  COMPENSATORY  DAMAGES.  (Part   5 

words  not  actionable  in  themselves,  must  result  from  injury  to  the 
plaintiff's  reputation  which  affects  the  conduct  of  others  toward  him, 
and  that  his  mental  distress,  physical  illness  and  inability  to  labor, 
occasioned  by  the  aspersion,  are  not  such  natural  and  legal  consequen- 
ces of  the  words  spoken  as  to  give  an  action. 

In  this  case  the  court  say:  "It  would  be  highly  impolitic  to  hold  all 
language  wounding  the  feelings  and  affecting  unfavorably  the  health 
and  ability  to  labor  of  another  a  ground  of  action,  for  that  would  be  to 
make  the  right  of  action  depend  often  upon  whether  the  sensibilities 
of  a  person  spoken  of  are  easily  excited  or  otherwise,  his  strength  of 
mind  to  disregard  abusive,  insulting  remarks  concerning  him,  and  his 
physical  strength  and  ability  to  bear  them.  Words  which  would  make 
hardly  an  impression  on  most  persons,  and  would  be  thought  by  them, 
and  should  be  by  all,  undeserving  of  notice,  might  be  exceedingly 
painful  to  some,  occasioning  sickness  and  an  interruption  of  the  abil- 
ity to  attend  to  their  ordinary  avocations.  There  must  be  some  limit 
to  liability  for  words  not  actionable  per  se,  both  as  to  the  words  and 
the  kind  of  damages ;  and  a  clear  and  wise  one  has  been  fixed  by  the 
law.  (The  words  must  be  defamatory  in  their  nature,  and  must  in 
fact  disparage  the  character;  and  this  disparagement  must  be  evi- 
denced by  some  positive  loss  arising  therefrom  directly  and  legitimately 
as  a  fair  and  natural  result.\  In  this  view  of  the  law  words  which  do 
not  degrade  the  character  do  not  injure  it,  and  cannot  occasion  loss." 

The  same  doctrine  is  announced  in  Wilson  v.  Goit,  17  N.  Y.  442. 
It  seems  to  us  that  these  cases  announce  the  proper  doctrine.  If  mental 
anxiety  and  distress  of  mind  do  not  constitute  such  special  damages 
as  will  sustain  an  action  of  slander  for  words  not  actionable  per  se, 
it  is  because  distress  of  mind  and  mental  anxiety  do  not  constitute  such 
damage  as  can  be  redressed  by  an  action  for  slander,  and  consequently 
they  cannot  enhance  the  damages  when  the  words  spoken  are  action- 
able per  se.  And  this  is  the  view  declared  in  Townshend  on  Slander 
and  Libel,  §  391,  in  which  it  is  said:  "The  plaintiff,  to  aggravate  dam- 
ages, cannot  prove  the  defendant's  wealth,  nor  that  it  was  currently 
reported  that  defendant  had  charged  the  plaintiff  with  the  crime  men- 
tioned in  the  declaration,  nor  that  the  plaintiff  had  suffered  distress  of 
mind."  The  case  of  Swift  v.  Dickerman,  31  Conn.  285,  holds  a  contrary 
view.     So,  also,  does  Dufort  v.  Abadie,  23  La.  Ann.  280.    *     *     *  si 

31  See,  also,  cases  under  headings  "Aggravation,"  "Exemplary  Damages," 
and  "Breach  of  Promise.*' 

Devens,  J.,  in  Mahoney  v.  Belford,  132  Mass.  393  (1882): 

"Upon  the  question  of  damages  the  court  instructed  the  jury  'that  they 
might  consider  the  injury,  if  any  shown,  to  the  mental  feelings  of  the  plain- 
tiff, which  was  the  natural  and  necessary  result  of  the  words  used,  if  in  fact 
they  were  used  as  alleged,  and  were  slanderous ;  that  mental  suffering  was 
an  element  of  damage.'  This  was  correct.  The  words,  if  uttered  at  all,  were 
uttered,  as  appears  by  the  bill  of  exceptions,  in  an  angry  dispute  at  an  election, 
in  the  presence  of  from  twenty  to  sixty  persons.  While  theevidence  was  cir- 
cumstantial, and  not  direct,  that  the  plaintiff  had  been  actually  damnified  and 


^^-  2)  MENTAL   SUFFERING.  477 

had  endured  mental  sufferlnR  in  consequence,  'the  occasion,  clrcumstancos, 
manner  and  nature'  of  the  alleged  slander  were  such  as  warranted  the  plain- 
tiff in  contending  that  they  had  occasioned  actual  injury  and  mental  suffering, 
and  in  seeking  substantial  damages  therefor.  'Undoubtedly,'  said  Chief  Jus- 
tice Bigelow  in  Markham  v.  Russell,  12  Allen,  573.  90  Am.  Dec.  169,  'the 
material  element  of  damage  in  an  action  for  slander  is  the  injury  done  to 
character.  But  it  Is  not  the  sole  element.  A  jury  may  have  a  right  also 
to  consider  the  mental  suffering  which  may  have  been  occasioned  to  a  party 
by  the  publication  of  the  slanderous  words.'  See,  also,  Marble  v.  ChaDln  132 
Mass.  225." 


478  COMPENSATORY  DAMAGES.  (Part    5 


CHAPTER  III. 

PECUNIARY  CONDITION  OF  PARTIES  AS  AFFECTING 
THE  ALLOWANCE  OF  DAMAGES. 


SECTION  1.— OF  PLAINTIFF. 


BECK  V.  DOWELL. 

(Supreme  Court  of  Missouri,  1892.     Ill  Mo.  506,  20  S.  W.  209,  23  Am.  St.  Rep. 

547.) 

Gantt,  p.  J,i  *  *  *  Is  evidence  of  the  financial  condition  of 
the  plaintiff  admissible  in  an  action  for  damages,  when  there  are  cir- 
cumstances of  oppression  or  malice?  *  *  *  'pj^g  evidence  in  this 
case  tended  to  show  that  the  plaintiff  was  a  girl  about  IG  years  old ; 
that  her  father  was  a  tenant  of  defendant;  that  on  the  day  she  was 
shot  by  defendant  her  father  and  his  sons  were  trying  to  water  a  cow- 
in  a  lot  of  the  defendant;  that  a  difficulty  ensued — a  general  fight; 
that  she  was  standing  in  the  lot  looking  on,  unarmed,  when  the  defend- 
ant turned  upon  her,  and  shot  her  through  the  thigh.  In  other  words 
the  defendant,  with  a  deadly  weapon,  shot  an  unarmed  girl  without 
lawful  provocation.  We  think  there  was  ample  evidence  from  which 
the  jury  could  find  willful,  wanton  injury.  In  1  Suth.  Dam.  p.  745,  it 
is  said :  "In  actions  for  torts,  the  damages  for  which  cannot  be  meas- 
ured by  a  legal  standard,  all  the  facts  constituting  and  accompanying 
the  wrong  should  be  proved;  and  though  there  be  a  legal  standard  for 
the  principal  wrong,  if  aggravations  exist  they  may  be  proved  to  en- 
hance damages ;  and  every  case  of  personal  tort  must  necessarily  go 
to  the  jury  on  its  special  facts.  These  embrace  the  res  gestae  and  the 
age,  sex,  and  status  of  the  parties ;  this,  whether  the  case  be  one  for 
compensation  only,  or  also  for  exemplary  damages,  when  they  are  al- 
lowed." 

In  Bump  V.  Betts,  23  Wend.  85,  the  Supreme  Court  of  New  York, 
on  a  question  of  excessive  damages,  pointed  to  the  fact  that  the  de- 
fendant had  the  command  of  great  wealth,  and  that  the  plaintiff  was  a 
poor  man. 

In  McNamara  v.  King,  7  111.  432,  in  an  action  for  assault  and  bat- 
tery, the  court  permitted  the  plaintiff  to  show  he  was  a  poor  man  with 
a  large  family.    The  Supreme  Court  of  Illinois,  in  affirming  that  rul- 

1  Part  of  tlie  opiniou  is  omitted. 


Ch.  3)  PECUNIARY   CONDITION    OF   PARTIES.  4«» 

ing,  said :  We  are  also  of  the  opinion  that  the  circuit  court  decided  cor- 
rectly in  admitting  the  evidence  and  giving  the  instruction.  In  actions 
of  this  kind,  the  condition  in  life  and  circumstances  of  the  parties  are 
peculiarly  the  proper  subjects  for  the  consideration  of  the  jury  in  es- 
timating the  damages.  Their  pecuniary  circumstances  may  be  inquired 
into.  It  may  be  readily  supposed  that  the  consequences  of  a  severe 
personal  injury  would  be  more  disastrous  to  a  person  destitute  of  pe- 
cuniaiy  resources,  and  dependent  wholly  on  his  manual  exertions  for 
the  support  of  himself  and  family,  than  to  an  individual  differently  sit- 
uated in  life.  The  effect  of  the  injury  might  be  to  deprive  him  and  his 
family  of  the  comforts  and  necessaries  of  life.  It  is  proper  that  the 
jury  should  be  influenced  by  the  pecuniary  resources  of  the  defendant. 
The  more  affluent,  the  more  able  he  is  to  remunerate  the  party  he  has 
wantonly  injured."  In  Grable  v.  Margrave,  4  111.  372,  38  Am.  Dec.  88, 
in  an  action  for  seduction,  the  trial  court  admitted  evidence  to  show 
plaintiff  was  a  poor  man.  The  Supreme  Court,  on  appeal,  said :  '(The 
court  therefore  decided  correctly  in  admitting  evidence  showing  the 
pecuniary  condition  of  the  plaintiff.  This  evidence  does  not  go  to  the 
jury  for  the  purpose  of  exciting  their  prejudices  in  favor  of  the  plaintiff 
because  he  is  a  poor  man,  but  to  enable  them  to  understand  fully  the 
eft'ect  of  the  injury  upon  him,  and  to  give  him  such  damages  as  his  pe- 
culiar condition  in  Hfe  and  circumstances  entitle  him  to  receive.'! 

In  Gaither  v.  Blowers,  11  Md.  536,  in  an  action  for  assault  and  bat- 
tery, the  trial  court  having  admitted  evidence  for  the  plaintiff,  with  a 
view  of  increasing  his  damages,  that  he  was  a  laboring  man  and  had  a 
wife  and  children  to  support,  the  Supreme  Court,  after  quoting  the  lan- 
guage of  McNamara  v.  King,  7  111.  433,  says :  "This  is  good  sense, 
and  is  sustained  by  the  decisions  in  most  of  the  states.  An  injury  done 
to  a  person  not  dependent  on  manual  labor  for  the  support  of  himself 
and  family  is  in  no  wise  as  great  as  one  to  a  person  so  situated." 

In  Reed  v.  Davis,  4  Pick.  215,  the  Supreme  Court  of  Alassachusetts, 
in  an  action  for  trespass  in  forcibly  evicting  plaintiff'  from  his  home, 
says :  "One  of  the  defendants  stated  to  a  witness,  in  answer  to  his  in- 
quiry whether  he  thought  the  plaintiff  could  not  make  h'm  suffer,  that 
•the  plaintiff  had  been  to  jail,  and  sworn  out,  and  was  not  able  to  do 
anything.'  Now,  that  circumstance  was  to  be  taken  into  consideration 
by  the  jury.  There  is  nothing  more  abhorrent  to  the  feelings  of  the 
subjects  of  a  free  government  than  oppressing  the  poor  and  distressed 
under  the  forms  and  color,  but  really  in  violation,  of  the  law."  "It 
is  found  that  the  dwelling  house  was  small,  but  the  damages  are  not 
to  be  graduated  by  the  size  of  the  building.  The  plaintiff  also  was 
poor.  He  had  seen  better  days,  but  had  been  reduced  in  his  circum- 
stances. He  was  thought  not  to  be  able  to  do  anything  in  vindication 
of  his  rights  at  the  law." 

In  Dailey  v.  Houston,  58  Mo.  361.  this  court  said:  "It  is  next  in- 
sisted that  the  court  improperly  told  the  jury  that,  in  the  estimation  of 
damages,  they  might  take  into  consideration  the  'condition  in  life  of 


"b*  Arv«r»-'  -  Cl^'***~^     yri«'"%-N«.in 


480  COMPENSATORY  DAMAGES.  (Part    5 

plaintiffs,  and  their  pursuits  and  nature  of  their  business.'  (  There  is  no 
doubt  but  that,  in  estimating  damages  in  such  cases,  the  jury  may 
properly  take  into  consideration  the  pecuniary  condition  of  the  parties, 
their  position  in  society,  and  all  other  circumstances  tending  to  show 
the  vindictiveness,  or  atrocity  or  want  of  atrocity,  in  the  transaction, 
and  which  tend  to  characterize  the  assault.]'  This  decision  of  Judge 
Vories  was  concurred  in  by  all  the  judges.  'It  has  never,  to  our  knowl- 
edge and  so  far  as  we  can  ascertain,  been  questioned,  denied,  or  criticis- 
ed. It  is  in  harmony,  as  we  have  seen,  with  the  decisions  of  other 
courts  of  great  ability.  It  is  in  harmony  with  the  tendency  of  the 
courts  to  place  before  the  triers  of  facts,  whether  court  or  jury,  every 
fact  that  will  aid  them  in  arriving  at  a  correct  verdict.  It  is  evident  in 
this  case  its  effect  was  not  to  create  prejudice  or  passion.     *     *     * 


PENNSYLVANIA  CO.  v.  ROY. 

(Supreme  Court  of  United  States,  1S80.     102  U.  S.  451,  26  L.   Ed.  141.) 

The  action  was  for  personal  injuries  sustained  by  plaintiff  by  reason 
of  the  falling  of  a  defective  upper  berth  of  a  sleeping  car  upon  his  head. 

Harlan,  j,2  *  *  *  'pj-^g  plaintiff  was  permitted,  against  the  ob- 
jection of  the  defendant,  to  give  the  number  and  ages  of  his  children — 
a  son  ten  years  of  age,  and  three  daughters  of  the  ages,  respectively,  of 
fourteen,  seventeen,  and  twenty-one.  This  evidence  does  not  appear 
to  have  been  withdrawn  from  the  consideration  of  the  jury.  It  cer- 
tainly had  no  legitimate  bearing  upon  any  issue  in  the  case.  The  mani- 
fest object  of  its  introduction  was  to  inform  the  jury  that  the  plaintiff 
had  infant  children  dependent  upon  him  for  support,  and,  consequent- 
ly, that  his  injuries  involved  the  comfort  of  his  family.  [This  proof,  in 
connection  with  the  impairment  of  his  ability  to  earn  money,  was  well 
calculated  to  arouse  the  sympathies  of  the  jury,  and  to  enhance  the 
damages  beyond  the  amount  which  the  law  permitted;  that  is,  beyond 
what  was,  under  all  the  circumstances,  a  fair  and  just  compensation  to 
the  person  suing  for  the  injuries  received  by  him.  How  far  the  assess- 
ment of  damages  was  controlled  by  this  evidence  as  to  the  plaintiff's 
family  it  is  impossible  to  determine  with  absolute  certainty;  but  the 
reasonable  presumption  is  that  it  had  some  influence  upon  the  verdict. 

The  court,  in  a  manner  well  calculated  to  attract  the  attention  of  the 
jury,  withdrew  from  their  consideration  the  evidence  in  regard  to  the 
financial  condition  of  the  plaintiff ;  but  as  nothing  was  said  by  it  touch- 
ing the  evidence  as  to  the  ages  of  his  children,  they  had  the  right  to 
infer  that  the  proof  as  to  those  matters  was  not  withdrawn,  and  should 
not  be  ignored  in  the  assessment  of  damages.     *     *     *     Reversed. 

2  Paxt  of  the  opinion  is  omitted. 


Ch.  3)  PECUNIARY    CONDITION    OF   PARTIES.  481 

VANDERPOOL   v.   RICHARDSON. 
(Supreme  Court  of  Michigan,  1S83.     52  Mich.  336,  17  N.  W.  936.) 

Action  for  breach  of  promise  of  marriage. 

CooLEY,  J.^  This  suit  was  instituted  for  breach  of  promise  of  mar- 
riage. *  *  *  The  plaintiff  was  *  *  *  suffered,  in  answer  to 
the  question  whether  she  had  any  property  of  her  own,  to  say  that  she 
had  none.  Pennsylvania  Co.  v.  Roy,  102  U.  S.  451,  26  L.  Ed.  141,  is 
relied  upon  as  authority  against  this  evidence.  The  suit  in  that  case 
was  brought  to  recover  damages  for  a  personal  injury,  and  the  court 
very  properly  held  that  these  damages  did  not  at  all  depend  upon  the 
wealth  or  poverty  of  the  plaintiff.  But  when  the  suit  is  for  the  loss  of 
a  marriage  and  of  an  expected  home,  the  fact  that  the  plaintiff  is  without 
the  means  to  provide  an  independent  home  for  herself  is  not  entirely 
unimportant.  It  may  be  supposed  to  be  one  of  the  facts  which  both 
parties  had  in  mind  in  making  their  arrangements ;  and  it  is  not  im- 
proper that  the  jury  should  know  of  it  also  and  take  it  into  account  in 

aking  up  their  verdict. 
^In  his  charge  to  the  jury  the  judge  told  them  they  might  take  into 
jonsideration  the  length  of  time  the  engagement  had  continued  between 
the  parties.  Exception  was  taken  to  this,  but  it  was  a  very  proper  direc- 
tion. He  also  told  them  that  if  they  should  find  that  the  defendant 
wantonly,  willfully,  and  causelessly  broke  the  engagement,  they  might, 
in  their  estimate  of  damages,  consider  the  injury  to  the  plaintift''s 
feelings  and  reputation,  and  any  circumstances  of  indignity  under 
which  the  wrong  was  done,  and  the  consequent  public  disgrace  to  the 
plaintiff,  together  with  any  other  circumstances  belonging  to  the  wrong- 
ful act  tending  to  the  plaintiff's  discomfort.  This  is  complained  of  as 
having  no  evidence  to  support  it.  But  we  do  not  think  the  case  is  en- 
tirely without  evidence  to  justify  such  a  charge.  The  proofs  tended 
to  show  that  the  engagement  was  made  known  to  the  lady's  immediate 
friends ;  that  it  was  broken  without  cause  or  warning  by  a  marriage 
with  another;  and  that  then  the  defendant  denied  ever  making  it. 
There  were  certainly  in  these  facts  circumstances  of  mortification,  and 
their  tendency  was  to  bring  the  plaintiff  into  public  disgrace.  We  find 
no  error  in  this  or  in  any  of  the  other  rulings  complained  of.     *     *     * 

8  Part  of  the  opinion  is  omitted. 
Gilb.Dam.— 31 


Ti 


482  C0MPE^SAT0RY  DAMAGES.  (Part  6 

SECTION  2.— OF  DEFENDANT. 


BENNETT  v.  HYDE. 

(Supreme  CJourt  of  Connecticut,  1825.    6  Conn.  24.) 

HoSMER,  C.  J.*  *  *  *  (it  has  been  frequently  adjudged,  in  this 
state,  and  may  be  considered  as  established  law,  that  the  plaintiff  in 
an  action  of  slander  may  prove  the  amount  of  the  defendant's  prop- 
erty to  aggravate  damages;  and,  on  the  other  hand,  that  the  defend- 
ant may  recur  to  the  same  evidence  for  the  purpose  of  mitigating 
them.^  The  same  rule  is  deducible  from  the  law  of  Massachusetts 
(Larned  v.  Buffinton,  3  Mass.  546,  3  Am.  Dec.  185),  admitting  evi- 
dence in  proof  of  the  plaintiff's  rank  and  condition,  to  increase  the 
damages,  or  to  lessen  them,  according  as  the  facts  should  be  found. 
It  is  not  to  be  inferred,  that  the  damages  are,  of  course,  to  be  propor- 
tioned to  the  defendant's  property;  but  merely  that  property  forms 
an  item,  which,  in  the  estimate,  is  deserving  of  regard.  Great  wealth 
is  generally  attended  with  correspondent  influence;  and  little  influ- 
ence is  the  usual  concomitant  of  little  property.  The  declarations 
of  a  man  of  fortune  concerning  the  character  of  another,  like  a  weapon 
thrown  by  a  vigorous  hand,  will  not  fail  to  inflict  a  deeper  wound  than 
'the  same  declarations  made  by  a  man  of  small  estate,  and,  as  a  conse- 
quence not  uncommon,  of  small  influence.  Property,  therefore,  may 
be,  and  often  is,  attended  with  the  power  of  perpetrating  great  dam- 
age, and,  in  the  estimate  of  a  jury,  becomes  an  interesting  enquiry. 
I  am  not  asserting  what  ought  to  be,  but  what  is;  and  that  the  de- 
gree of  injury,  necessarily,  is  dependent,  in  some  measure,  on  the  con- 
siderations before  mentioned.     *     *     * 


JOHNSON  V.  SMITH. 

(Supreme  Judicial  Court  of  Maine,  1875.     64  Me.  553.) 

Trespass  by  George  W.  Johnson  against  Manasseh  Smith  for  assault 
and  battery.  The  defendant  oft'ered  evidence  of  his  property  and 
means,  as  bearing  upon  the  matter  of  punitive  damages  and  in  mitiga- 
tion thereof.  The  plaintiff  introduced  no  evidence  tending  to  show  that 
the  defendant  had  any  property  whatever,  and  did  not  claim  that  the 
damages  should  be  increased  by  reason  of  wealth  or  any  pecuniary 
ability  on  the  part  of  the  defendant.  The  court  excluded  this  evidence 
offered  by  the  defendant,  and  he  excepted. 

*  Part  of  tlie  opinion  is  omitted. 


Ch.  3)  PECUMAKY    CONDITION    OF   PARTIES.  483 

Danforth,  j.b     ♦     *     *     So  far  as  the  cause  of  action  rests  upon 
an  injury  to  the  character,  or  an  insult  to  the  person,  compensatory 
damages  may  be  increased  by  proof  of  the  wealth  of  the  defendant. 
This  is  upon  the  ground  that  wealth  is  an  element  which  goes  to  make 
up  his  rank  and  influence  in  society,  and  thereby  renders  the  injury 
or  insult  resulting  from  his  wrongful  acts  the  greater.     Humphries 
V.  Parker,  52  Me.  507,  508 ;   2  Grecnl.  Ev.  §  209.    But  in  such  cases, 
as  it  is  rather  the  reputation  for,  than  the  possession  of,  wealth,  which    ^  -_ 
is  the  cause  of  this  increased  rank,  the  testimony  must  correspond,  '^,',.. 
and  only  the  general  question  as  to  his  circumstances  can  be  asked,  and^^^^^^. 
not  the  detail.     Stanwood  v.  Whitmore,  63  Me.  209.  ^    c^.*--^ 

But  when  exemplary  damages  are  claimed,  a  different  question  is  ^^'f^'**' 
presented.  The  defendant's  pecuniary  ability  is  then  a  matter  for  the  ^.,...„.,iX*^^ 
consideration  of  the  jury,  on  the  ground  that  a  given  sum  would  be  a  ^-^^  ^.^ 
much  greater  punishment  to  a  man  of  small  means  than  to  one  of  ,_.w^.  «-»< 
larger  McBride  v.  McLaughlin,  5  Watts  (Pa.)  375^  Upon  this  point  UcLXc-^ 
actual  wealth  could  only  be  material.  As  bearing  upon  this  point  the 
testimony  was  offered  and  excluded.  This  took  from  the  jury  an  ele- 
ment proper  for  their  consideration. 

It  is  true  the  plaintiff  offered  no  proof  upon  this  point  and  claimed  ^^ 

no  damages  by  reason  of  defendant's  "wealth  or  pecuniary  ability  ;"£^"^^^^^ 
but  if  it  was  competent  for  the  plaintiff  to  prove  defendant's  wealth  ^^^^^j^^ 
to  increase  his  damages,  it  was  equally  competent  for  the  defendant  to  ^^^  t^' 
show  a  want  of  it  to  diminish  them ;  and  the  waiving  of  the  right  by  -^  "-^  t 
the  one,  is  no  reason  why  it  should  be  taken  from  the  other.  )*    *    *  '^l  oH 


CHELLIS  v.  CHAPMAN. 

(Court  of  Appeals  of  New  York,  1891.     125  N.  Y.  214,  26  N.  R  308,  11  L.  R.  A. 

784.) 

Gray,  J.t  *  *  *  Evidence  of  the  defendant's  general  reputa- 
tion as  to  wealth,  at  the  time  of  the  agreement  of  marriage,  was  ad- 
mitted against  the  objection  to  its  competency  upon  the  subject  of  dam- 
ages in  such  an  action.  *  *  *  Such  evidence,  on  first  considera- 
tion, seems  to  conflict  with  the  general  rule  that  in  actions  for  a  breach 
of  contract  evidence  as  to  the  defendant's  wealth  is  inadmissible. 
The  plaintiff,  in  such  actions,  is  entitled  to  recover  only  those  damages 
which  she  may  prove  that  she  has  suffered  in  consequence  of  the  de- 
fendant's failure  to  perform  on  his  part.  The  defendant's  solvency, 
or  insolvency,  has  nothing  to  do  with  the  issue,  and  furnishes  no  meas- 

B  Part  of  the  opinion  is  omitted. 

6  Soo.  also,  Graiile  v.  Mars;r:ive.  4  111.  .372.  38  Am.  Doc.  88  (184.1) ;    Storey 
V.  Early.  SO  111.  4G1    (1S77);    Palmer  v.  Ilaskins.  28  Barb.  (X.   Y.)  00  (18.">S); 
Ilayuer  v.  Cowden,  27  Oliio  St.  292,  22  Am.  Rep.  303  (1875) ;  Draper  v.  Baker, 
ante.  p.  78. 
T  Part  of  the  opinion  is  omitted. 


484  COMPENSATORY  DAMAGES.  (Part   5 

ure  for  the  computation  of  damages.  And  this  rule  of  exclusion  as  to 
such  evidence  has  been  also  applied  to  cases  where  damages  are  sought 
to  be  recovered  for  seduction,  or  for  criminal  conversation.  James 
V.  Biddington,  6  Car.  &  P.  589 ;  Dain  v.  Wycoff,  7  N.  Y.  191.  Baron 
Alderson,  in  James  v.  Biddington,  an  action  by  a  husband  for  crim- 
inal conversation  with  his  wife,  assigned  as  the  reason  for  holding 
such  evidence  to  be  improper  that  "the  plaintiff  is  entitled  to  as  much 
damages  as  a  jury  think  is  a  compensation  for  the  injury  he  has  sus- 
tained, and  the  amount  of  the  defendant's  property  is  not  a  question 
in  the  case."  Judge  Gardiner,  in  Dain  v.  Wycoff,  an  action  by  a  father 
for  the  seduction  of  his  daughter,  reasoned,  upon  the  exclusion  of 
proof  of  what  defendant  was  worth,  that  the  jury  should  not  be  al- 
lowed "to  go  beyond  the  issue  between  the  parties  litigating,  and,  after 
indemnifying  the  plaintiff  for  the  injury  sustained  by  him,  proceed 
as  conservators  of  the  public  morals  to  punish  the  defendant  in  a  pri- 
vate action  for  an  offense  against  society." 

The  principle  underlying  the  exclusion  of  this  kind  of  evidence,  in. 
the  latter  class  of  cases,  is  that  vindictive  or  punitive  damages  would 
be  improper,  as  the  recovery  in  them  should  be  confined  to  what  the 
jury  may  deem  to  be  a  sufiicient  compensation  for  the  injury  sustained 
by  the  plaintiff.  But  the  present  action  is  quite  other  in  its  nature, 
and  constitutes  an  exception  to  that  general  rule  upon  the  subject  of 
damages  for  violation  of  contract  obligations  which  has  been  assented 
to  by  the  judges  of  the  courts  in  this  country  and  in  England.  It  is  ap- 
parent that,  in  such  an  action  as  this,  there  can  be  no  hard  and  fast  rule 
of  damages,  and  that  they  must  be  left  to  the  discretion  of  the  jury. 
Of  course,  that  discretion  is  not  so  absolute  as  to  be  independent  of  a 
consideration  of  the  evidence.  It  is  one  which  is  to  be  exercised  with 
regard  to  all  the  circumstances  of  the  particular  case,  and,  as  it  has  fre- 
quently been  said,  where  the  verdict  has  not  been  influenced  by  preju- 
dice, passion,  or  corruption,  the  verdict  will  not  be  disturbed  by  the 
court.  pThat  the  amount  of  the  suitor's  pecuniary  means  is  a  factor  of 
some  importance  in  the  case  of  a  demand  of  marriage  cannot  fairly  be 
denied.  It  is  a  circumstance  which  very  frequently  must  have  its  par- 
ticular influence  upon  the  mind  of  the  woman  in  determining  the  ques- 
tion of  consent  or  refusal;  and,  as  I  think,  in  a  proper  case,  very  nat- 
urally and  properly  so.  The  ability  of  the  man  to  support  her  in 
comfort,  and  the  station  in  life  which  marriage  with  him  holds  forth, 
are  matters  which  may  be  weighed  in  connection  with  an  agreement 
to  marr}^ 

In  the  case  at  bar  the  plaintiff  was  47  years  of  age,  and  the  defend- 
ant 74.  Six  years  previously  he  had  sought  her  acquaintance,  un- 
solicited by  her,  and  with  matrimonial  views  on  his  part.  He  had 
visited  her  more  or  less  frequently,  and  had  twice  proposed  marriage 
before  their  engagement  in  1886.  She  was  and  had  been  supporting 
herself  as  a  teacher  and  superintendent  in  city  schools.  He  had  never 
been  married,  and  had  lived  in  the  country  as  a  farmer.    He  was  pos- 


Ch,  3)  PECUNIARY   CONDITION    OF   PARTIES.  485 

sess-ed  of  pecuniary  means,  considerable  in  amount  in  the  general  es- 
timation of  his  neighbors,  and  not  inconsiderable  if  we  take  his  own 
estimate.  Though  pretending  to  some  cultivation  of  mind,  which, 
among  other  ways,  if  we  may  judge  from  this  record,  he  seemed  to 
delight  in  displaying  by  a  versification  of  the  homely  though  not  very 
inspiring  or  romantic  topics  and  events  of  his  farm  life  and  surround- 
ings, he  yet  was  seemingly  lacking  in  those  outward  graces  of  the 
person  which  are  not  infrequently  deemed  a  substitute  for  more  solid 
possessions.  Nor  does  he  seem  to  have  had  recourse  to  the  adventi- 
tious aids  of  the  wardrobe  to  adorn  his  exterior  person,  and  thereby 
to  compensate  for  personal  shortcomings.  (J  think  that  the  jury  should 
be  made  aware  of  all  the  circumstances  which  in  this  case,  and  in  every 
such  case,  might  be  supposed  to  have  presented  themselves  to  the  mind 
of  the  plaintiff  when  asked  to  change  her  position  by  marriage.  Of 
these  circumstances,  the  home  offered,  which  for  its  comforts  and  ease 
would  depend  upon  the  more  or  less  ample  pecuniary  means  of  the  de- 
fendant, the  freedom  from  the  personal  exertions  for  daily  support, 
the  social  position  accompanying  the  marriage,  all  these  are  facts  which 
have  their  proper  bearing  upon  the  question  of  marriage.  The  wealth 
and  the  reputation  for  wealth  of  a  man  are  matters  which,  as  this 
world  is  constituted,  often  aid  in  determining  his  social  position,  not- 
withstanding he  may  have  other  and  more  intelligible  rights  to  it,  and 
despite  objectionable  characteristics  or  traits.  Where,  therefore,  the 
defendant  has  demanded  an  engagement  of  marriage,  it  seems  proper 
enough  that  the  jury  should  know  what  possible  reinforcement  his  suit 
may  have  had,  and  what  were  the  inducements  offered  by  his  social 
standing  and  surroundings)  In  the  case  of  James  v.  Biddington,  supra, 
Baron  Alderson,  while  holding  it  improper  to  give  evidence  of  the 
amount  of  defendant's  property  in  an  action  for  criminal  conversation, 
said:  ("In  a  case  of  breach  of  promise  of  marriage,  the  amount  of  the 
defendant's  property  is  very  material,  as  showing  what  would  have 
been  the  station  of  the  plaintiff  in  society  if  the  defendant  had  not 
broken  his  promise."     *     *     * 

Assuming  that  the  amount  of  defendant's  property  is  material  in 
such  an  action,  then  evidence  of  the  reputation  which  he  enjoys  for 
wealth  is  unobjectionable.  Reputation  is  the  common  knowledge  of 
the  community,  and,  if  it  is  exaggerated  or  incorrect,  the  defendant 
has  the  opportunity  to  correct  it,  and  of  giving  the  exact  facts  upon 
the  trial.  The  admission  of  the  evidence  is  not  to  establish  an  ability 
to  pay,  but  to  show  the  social  standing  which  defendant's  means  did, 
or  might,  command.^   *     *     ♦ 


PART  VI. 
DAMAGES  IN  CERTAIN  SPECIFIC  ACTIONS. 


CHAPTER  I. 
IN  CERTAIN  TORT  ACTIONS. 


SECTION  1.— AFFECTING  THE  PERSON. 


ROSS  V.  LEGGETT. 

(Supreme  Court  of  Michigau,  1886.     61  Mich.  445,  28  N.  W.  695,  1  Am.  St. 

Rep.  608.) 

The  plaintiff  was  arrested  without  warrant  by  order  of  the  defend- 
ant, and,  after  being  searched,  was  imprisoned  over  night  and  until  11 
o'clock  the  following  morning,  when  he  was  charged  with  malicious- 
ly injuring  personal  property  of  the  company  of  which  the  defendant 
was  president  "to  the  damage  of  six  dollars."  The  plaintiff  was  sub- 
sequently discharged.  He  obtained  below  a  verdict  for  $4,500  for  dam- 
ages for  the  false  imprisonment. 

Sherwood,  J.i  *  *  *  Upon  the  subject  of  damages  the  court 
charged  the  jury:  "There  are  two  kinds  of  damages.  The  law  has 
divided  them  into  two  classes.  *  *  *  jn  the  first  place,  there  are 
what  are  called  'actual'  damages.  Then  there  are  what  are  called 
'vindictive'  or  'punitory'  damages,  or  what  our  own  Supreme  Court 
calls  'added'  damages,  for  want  of  a  better  name.  Actual  damages 
are  such  compensation  for  the  injury  as  would  follow  from  the  nature 
and  character  of  the  act.  Actual  damages,  in  this  case,  would  be  com- 
pensation for  such  injuries  as  would  fall  upon  any  man  who  under- 
went the  same  treatment  which  Mr.  Ross  is  shown  to  have  undergone 
in  this  case.  What  are  those  damages  ?  What  are  the  elements  ?  There 
is  the  pain  and  suffering  which  any  man  would  be  supposed — which 
the  average  citizen  would  be  supposed — to  suffer  under  those  circum- 
';^-!'7ces.  There  is  being  shut  up — the  physical  discomfort.  There  is 
the  sense  of  shame,  mortification,  wrong,  and  outrage.    All  these  mat- 

1  Part  of  the  opinion  is  omitted. 

(486) 


Ch.  1)  IN    TORT    ACTIONS    AFFECTING    THE    PERSON.  487 

ters  enter  into  the  actual  damages.  You  are  to  view  Mr.  Ross  as  you 
would  any  other  man  in  that  regard.  You  are  to  be  guided  in  that  mat- 
ter by  your  common  sense,  because  there  is  no  other  rule.  There  is  no 
other  way  of  getting  at  it.  Your  common  sense  is  to  determine  what 
naturally  and  inevitably  would  be  the  suffering  of  the  average  citizen 
under  such  circumstances;  because  the  law  will  not  allow  your  feel- 
ings to  be  harrowed,  will  not  allow  you  to  be  put  to  shame  and  mortifi- 
cation. In  the  eye  of  the  law,  those  attributes  of  manhood — those  sen- 
timents, those  sensitivenesses,  so  to  speak — which  come  from  the  bet- 
ter quality  of  our  nature,  are  matters  which  are  not  to  be  trifled  with, 
any  more  than  a  man's  bones  or  his  flesh.  All  these  things  the  law 
considers  precious.  All  these  things  the  law  considers  as  subjects  of 
injury,  and  for  injuries  of  this  kind  the  law  gives  compensation.  What 
would  the  average  man  naturally  suffer,  under  those  circumstances, 
from  this  imprisonment — from  what  took  place — from  what  Mr.  Ross 
was  subjected  to  that  night?  What  the  average  man  would  suffer  under 
those  circumstances  would  be  the  actual  damage.  But,  beyond  actual 
damages,  the  law  gives  what  are  called  'added'  damages.  Those  grow 
out  of  the  wantonness  or  atrocity,  so  to  speak,  of  the  act."     *     *     * 

We  think  this  charge  is  within  the  rule  best  supported  by  the  authori- 
ties, and  within  the  spirit  of  the  decisions,  so  far  as  any  have  been  made 
in   the   court,   inasmuch   as   the  arrest  was   clearly  without   author- 

The  jury,  by  their  verdict,  found  the  defendant  guilty  of  the  unlaw- 
ful acts  and  trespasses  to  the  person  and  feelings  of  the  plaintiff  com- 
plained of  in  his  declaration,  and  if  the  wrongs  inflicted  by  such  unlaw- 
ful acts  were  not  intended,  the  lack  of  such  intention  could  not  prevent 
the  pain  and  suffering  experienced  by  the  plaintiff  by  his  false  imprison- 
ment, or  prevent  the  physical  discomfort — the  sense  of  shame,  mortifi- 
cation, outrage,  and  disgrace — inflicted  upon  and  endured  by  the  plain- 
tiff; and,  if  so,  they  were  but  the  natural  consequences  of  the  injury 
the  plaintiff  received  by  the  treatment  of  the  defendant,  and  they  were 
all  elements  to  be  taken  in  consideration  by  the  jury  in  determining  the 
actual  damages,  and  no  error  was  committed  by  the  court  in  so  charging 
the  jury.  It  is  no  objection  to  this  view  that  the  same  elements,  or  some 
of  them,  must  be  considered  in  fixing  the  amount  of  exemplary  dam- 
ages, when  such  are  given.     *     *     * 


RICHMOND  GAS   CO.  v.   BAKER. 

(Supreme  Court  of  Indiana,  1S97.     140  Ind.  600;    45  N.  E.  lOiD,  3G  L.  R.  A. 

6S3.) 

The  plaintiff,  aged  85  years,  brought  this  action  to  recover  damages 
for  personal  injuries  caused  by  an  explosion  of  artificial  gas  in  her 
home,  occasioned  by  the  negligence  of  the  defendant  company.  A  ver- 
dict of  $4,600  was  awarded. 


488  DAMAGES  IN   CERTAIN   SPECIFIC  ACTIONS.  (Part   6 

Howard,  j,2  *  *  *  Upon  the  subject  of  damages  the  court  gave 
to  the  jury  two  instructions,  the  first  of  which  is  admitted  to  be  correct, 
and  the  second  of  which  is  complained  of  by  appellant  as  being  errone- 
ous.   The  two  instructions  are  as  follows : 

"No.  15.  If  you  find  a  verdict  for  the  plaintiff,  you  should  award  her 
a  sum  sufficient  to  fairly  compensate  her  for  all  damages,  if  any,  that 
it  is  shown,  by  a  fair  preponderance  of  the  evidence,  she  has  sustained. 
In  estimating  such  damages,  you  should  consider  the  nature  and  extent 
of  her  physical  injuries,  if  any,  whether  permanent  or  otherwise;  the 
effect  produced  thereby,  and  the  probable  effect  that  such  injuries  will 
directly  produce,  if  any,  upon  her  general  health,  and  all  physical  pain 
and  suffering  occasioned  thereby;  expenses  incurred  for  medical  at- 
tention, if  any,  shown  by  the  evidence.  And  if  you  find  from  the  evi- 
dence that  she  has  sustained  any  permanent  disability,  having  consid- 
ered the  nature  of  the  same,  you  may  award  her  such  prospective  dam- 
ages on  account  thereof  as  in  your  opinion  the  evidence  may  warrant 
you  in  believing  she  will  sustain,  if  any,  as  the  direct  result  thereof  in 
the  future.  And  you  have  the  right,  in  fixing  her  damages,  to  con- 
sider her  present  age,  and  the  probable  duration  of  her  life. 

"No.  IC.  If,  as  a  direct  result  of  the  injuries,  if  any,  received  by  the 
plaintiff,  her  expectancy  of  life  has  been  shortened,  this  circumstance 
may  be  taken  into  consideration  by  the  jury,  should  they  find  a  verdict 
in  her  favor,  in  estimating  the  damages,  if  any,  that  they  may  award 
to  her;  and  on  this  point  the  jury  may  consider  all  facts,  proved  by  a 
fair  preponderance  of  the  evidence,  as  to  the  plaintiff's  physical  con- 
dition, health,  vigor,  activity,  and  the  daily  work  done  by  her,  prior  to 
the  said  explosion." 

The  first  charge  above  given  is  full  and  complete,  covering  every  ele- 
ment of  damage  suggested  by  the  evidence,  unless  it  should  be  damages 
for  the  shortening  of  life,  as  referred  to  in  the  second  charge.  It  is 
as  to  this  question  that  counsel  differ.  Counsel  for  appellant  contend 
that  instruction  No.  16  is  erroneous,  for  the  reason  that  this  is  a  com- 
mon-law action,  and  the  common  law  does  not  admit  of  compensation 
in  money  for  the  taking  of  human  life,  or  the  shortening  of  its  dura- 
tion,    *     *     * 

In  an  action  for  injury  by  the  wrong  of  another  the  actual  condition 
of  the  injured  person,  as  caused  by  the  accident,  may  be  considered  for 
the  purpose  of  determining  the  amount  of  damages,  present  and  pros- 
pective, which  should  be  awarded.  And,  if  the  condition  of  the  injured 
person  is  such  that  a  shortening  of  life  may  be  apprehended,  this  may 
be  considered,  in  determining  the  extent  of  the  injury,  the  consequent 
disability  to  make  a  living,  and  the  bodily  and  mental  suffering  which 
will  result.  This,  however,  falls  far  short  of  authorizing  damages  for 
the  loss  or  shortening  of  life  itself.  The  value  of  human  life  cannot, 
as  adjudged  by  the  common  law,  be  measured  in  money.  It  is,  besides, 
inconceivable  that  one  could  thus  be  compensated  for  the  loss  or  short- 

8  Part  of  the  opinion  is  omitted,  and  ttie  statement  of  facts  is  rewritten. 


Ch.  1)  IN    TORT    ACTIONS    AFFECTING    THE    PERSON.  489 

ening  of  his  own  life.  And,  if  any  one  else  could  maintain  an  action 
for  the  death  of  the  injured  person,  it  must  be  because  the  person  bring- 
ing such  action  would  be  able  to  show  pecuniary  loss  or  damage  to 
himself  by  reason  of  the  death  of  such  other  person.  Of  that  nature 
are  various  statutory  actions  authorized  to  be  brought  by,  or  for  the 
benefit  of,  persons  regarded  as  having  a  pecuniary  interest  in  the  lives 
of  others.     *     *     * »     Reversed. 


IRWIN  v.  DEARMAN. 
(Court  of  King's  Bench,  1S09.     11  East,  23.) 

This  was  an  action  on  the  case  for  damages,  charged  in  one  count 
to  be,  for  debauching  and  getting  with  child  the  adopted  daughter  and 
servant  of  the  plaintiff,  by  which  he  lost  her  service,  and,  in  another 
count,  for  debauching  his  servant,  generally,  per  quod,  etc.;  and  the 
defendant  having  suffered  judgment  by  default,  a  writ  of  inquiry  was 
executed  before  the  sheriff  of  Middlesex,  when  it  appeared  in  evidence 
that  the  plaintiff,  an  officer  in  the  army,  had  taken  charge  of  the  infant 
daughter  of  a  deceased  soldier  in  the  regiment,  who  had  been  a  friend 
and  comrade  of  his,  which  daughter  he  had  bred  up  for  several  years 
in  his  house,  where  she  was  performing  the  offices  of  a  menial  servant 
(being  the  only  one  he  kept)  at  the  time  she  was  debauched  by  the  de- 
fendant. The  only  actual  damage  proved  by  the  plaintiff  was  the  loss 
of  the  young  woman's  service  for  five  weeks,  during  the  time  of  her 
absence  in  the  parish  workhouse,  where  she  lay  in ;  the  expense  of  her 
lying  in  having  been  paid  by  the  defendant.  But  the  jury  under  these 
circumstances  gave  £100.  damages. 

Motion  for  rule  to  set  verdict  aside. 

Lord  Ellenborough,  C.  J.  This  has  always  been  considered  as  an 
action  sui  generis,  where  a  person  standing  in  the  relation  of  a  parent, 
or  in  loco  parentis,  is  permitted  to  recover  damages  for  an  injury  of  this 
nature  ultra  the  mere  loss  of  service.  But  even  in  the  case  of  an  actual 
parent,  the  loss  of  service  is  the  legal  foundation  of  the  action.  And 
however  difficult  it  may  be  to  reconcile  to  principle  the  giving  of  great- 
er damages  on  the  other  ground,  the  practice  is  become  inveterate  and 
cannot  now  be  shaken.  And  having  been  considered,  in  the  case  of 
Edmondson  v.  Machell,  2  Term  Rep.  4,  to  extend  to  an  aunt,  as  one 
standing  in  loco  parentis,  I  think  that  this  plaintiff,  who  had  adopted 

3  See,  also.  Welch  v.  Ware.  32  Mich.  77  (1875),  ante.  p.  68;  Lucas  v.  Flinn. 
3r>  Iowa,  9  (1872),  ante.  p.  70  ;  Smith  v.  BasAvell,  19  Fla.  117,  45  Am.  Rep.  12 
(1882).  ante,  p.  97;  Hewlett  v.  George,  ante.  p.  475;  Ransom  v.  N.  Y.  & 
E.  R.  R.  Co.,  15  N.  Y.  415  (1857);  R.  &  D.  R.  Co.  v.  Allison,  86  Ga.  145,  12  S.  E. 
352.  11  L.  R,  A.  43  (1890),  ante.  p.  274:  L.  &  N.  R.  R.  Co.  v.  Wallace.  91  Tenn. 
3.").  17  S.  U'.  882.  14  L.  R.  A.  .548  (1801).  .ante.  p.  416;  Goodhart  v.  P.  R.  Co.. 
177  Pa.  1.  :?5  Atl.  191.  .55  Am.  St.  Rep.  705  (1896),  ante,  p.  430;  and  the  cases 
nnder  the  headings  "Physical  Pain,"  "Mental  Suffering,"  and  "Discretionary 
Damages." 


490  DAMAGES  IN   CERTAIN   SPECIFIC  ACTIONS.  (Part    6 

and  bred  up  the  daughter  of  a  friend  and  comrade  from  her  infancy, 
seems  to  be  equally  entitled  to  maintain  the  action,  on  account  of  the 
loss  of  service  to  him  aggravated  by  the  injury  done  to  the  object  on 
whom  he  had  thus  placed  his  affection. 
Rule  refused." 


KENDRICK  V.  McCRARY. 
(Supreme  Court  of  Georgia,  1852.    11  Ga.  603.) 

Lumpkin,  J.o  *  *  *  This  was  an  action  of  trespass  on  the  case, 
instituted  in  the  superior  court  of  Stewart  county,  by  Isaac  McCrary 
against  John  B.  Kendrick,  for  the  seduction  of  plaintiff's  daughter. 
The  jury  returned  a  verdict  for  $1,049 ;  and  a  new  trial  is  asked,  on 
the  grounds  that  the  daughter  was  twenty-one  years  old  at  the  time 
the  injury  occurred,  and  there  was  no  contract  of  service  between  her 
and  her  father;  that  the  service  rendered  was  voluntary.  And  it  is 
contended  that  the  father  could  not  sue  for,  and  recover  damages,  for 
the  loss  of  that  which  he  had  no  legal  right  to  claim;  that  the  measure 
of  damages  was  the  actual  loss  sustained;  and  that  the  right  of  action 
belonged  to  the  daughter  and  not  to  the  father. 

In  cases  of  this  sort,  it  is  not  necessary  to  prove  an  actual  contract 
between  the  father  and  the  daughter,  in  order  to  maintain  the  action. 
Before  the  child  attains  the  age  of  twenty-one,  the  law  gives  the  father 
dominion  over  her;  and  after,  the  law  presumes  the  contract,  when 
the  daughter  is  so  situated  as  to  render  service  to  the  father,  or  is  un- 
der his  control;  and  this  it  does  for  the  wisest  and  most  benevolent  of 
purposes,  to  preserve  his  domestic  peace,  by  guarding  from  the  spoiler 
the  purity  and  innocence  of  his  child.  Bennett  v.  Alcot,  2  Term  R. 
166;  Nickleson  v.  Styker,  10  Johns.  (N.  Y.)  115,  6  Am.  Dec.  318; 
Moran  v.  Dawes,  4  Cow.  (N.  Y.)  412;  Mainoter  v.  Nin,  M.  &  M.  323, 
cited  3  Stephens'  N.  P. ;  Hollaway  v.  Abell,  32  Eng.  Com.  L.  R.  615. 
In  the  case  before  us,  the  daughter  lived  in  her  father's  house  at  the 
time  of  the  seduction,  under  his  control,  and  in  the  performance  of 
actual  services. 

This  action  was  originally  given  to  the  master,  to  enable  him  to 
recover  damages  for  the  loss  of  service  occasioned  by  the  seduction  of 
his  servant.  He  was  restricted  in  his  recovery  to  the  actual  damages 
sustained.  The  loss  of  service  is  still  the  legal  foundation  of  the  ac- 
tion ;  and  the  father  cannot  maintain  the  action  without  averring  in  his 
declaration  and  proving  on  the  trial,  that  from  the  consequences  of  the 
seduction,  his  daughter  is  less  able  to  perform  the  duties  of  servant; 
but  the  proof  upon  both  of  these  points  need  be  very  slight.    It  matters 

8  See,  also,  Terry  v.  Hutchinson,  L.  R.  3  Q.  B.  599  (1868) ;  Andrews  v. 
Askey,  8  Car.  &  P.  7  (1837) ;  Elliott  v.  Nicklin,  5  Price,  641  (1818) ;  Bedford 
V.  McKovvl,  8  Esp.  119  (1800). 

6  Part  of  the  opinion  is  omitted. 


Ch.  1)  IN    TORT    ACTIONS    AFFECTING    THE    PERSON.  491 

not  how  small  the  service  she  rendered,  though  it  may  have  consisted 
in  milking  his  cows,  or  even  pouring  out  his  tea,  he  is  entitled  to  his 
action.  Carr  v.  Clark,  2  Chitty,  261;  Mann  v.  Barrett,  6  Esp.  23. 
Indeed,  as  shewn  by  the  cases  cited  under  the  other  head,  it  has  been 
decided,  that  the  father  need  not  prove  any  actual  service  rendered,  if 
at  the  time  of  the  seduction,  she  lives  with  her  father,  or  is  under  his 
control ;  and  that  too,  whether  she  be  a  minor  or  an  adult.  Lord  Den- 
man  held,  in  Joseph  v.  Cowan  (cited  2  Stephens'  N.  P.  2354,  and  Ros- 
coe  on  Ev.  493),  that  the  father  can  maintain  the  action  before  the  con- 
finement of  his  daughter,  and  even  though  he  has  turned  her  out  of 
doors. 

As  to  the  measure  of  damages,  the  rule  originally  governing  the  ac- 
tion, has  for  a  long  time  been  so  far  extended  as  to  authorize  the  fa- 
ther to  recover  damage  beyond  the  mere  loss  of  services  and  expenses 
consequent  on  the  seduction. 

Lord  Ellenborough,  in  the  case  of  Irwin  v.  Dearman,  1  East,  24, 
says :  "However  difficult  it  may  be  to  reconcile  to  principle  the  giving 
of  greater  damages,  the  practice  is  become  inveterate,  and  cannot  now 
be  shaken."  In  Tulledge  v.  Wade,  3  Wils.  18,  Chief  Justice  Wilmot 
remarks :  "Actions  of  this  sort  are  brought  for  example's  sake ;  and  al- 
though the  plaintiff's  loss  in  this  case,  may  not  really  amount  to  the 
value  of  twenty  shillings,  yet  the  jury  have  done  right  in  giving  liberal 
damages."  The  court,  in  Tillotson  v,  Cheatham,  3  Johns.  (N.  Y.)  56, 
3  Am.  Dec.  459,  quoting  the  foregoing  cases  with  approbation,  adds : 
"The  actual  pecuniary  damages,  in  actions  for  defamation,  as  well  as  in 
other  actions  for  loss,  can  rarely  be  computed,  and  are  never  the  sole 
rule  of  assessment." 

In  Briggs  v.  Evans,  27  N.  C.  16,  and  upon  which  I  have  already 
drawn,  the  Supreme  Court  of  North  Carolina  use  this  strong  lan- 
guage: "The  second  exception  is  equally  as  untenable  as  the  first.  It 
assumes  that  the  only  consequential  injury  to  the  father,  of  which  he 
has  a  right  to  complain,  consists  in  the  loss  of  the  services  of  his 
daughter,  and  the  expenses  he  may  incur  during  her  confinement. 
This  certainly  is  not  so.  If  it  were  so,  and  pregnancy  did  not  result 
from  the  seduction,  the  father  would  have  no  action.  All  the  authori- 
ties show  that  the  relation  of  master  and  servant,  between  the  parent 
and  child,  is  but  a  figment  of  the  law,  to  open  to  him  the  door  for  the 
redress  of  his  injuries.  It  is  the  substratum  on  which  the  action  is 
built;  the  actual  damage  which  he  has  sustained,  in  many,  if  not  in 
most  cases,  exists  only  in  the  humanity  of  the  law,  which  seeks  to  vin- 
dicate his  outraged  feelings.  He  comes  into  the  court  as  a  master,  he 
goes  before  the  jury  as  a  father."     *     *     ♦ 


492  DAMAGES  IN  CERTAIN   SPECIFIC  ACTIONS.  (Part   6 

OSMUN  V.  WINTERS. 

(Supreme  Court  of  Oregon,  1894.     25  Or.  2G0,  35  Pac.  250.) 
See  ante,  p.  81,  for  a  report  of  the  case.'' 


LONG  V.  BOOE. 
(Supreme  Court  of  Alabama,  1895.    106  Ala.  570,  17  South.  716.) 

McClellan,  j,8  *  *  *  jj^  actions  for  criminal  conversation, 
prosecuted  by  a  husband  for  the  defilement  of  his  wife,  it  is  usual  to 
claim  damages  for  the  loss  of  the  wife's  services.  That  claim  is  made 
in  this  case.  There  was  evidence  that  plaintiff  and  his  wife  had  been 
living  together  as  man  and  wife  for  two  or  three  weeks  before  the 
trial.  There  was  no  evidence  of  the  value  of  the  wife's  services,  or 
the  pecuniary  loss  to  the  plaintiff  from  a  deprivation  of  her  services 
during  the  period  they  had  lived  apart  in  consequence  of  her  relations 
with  the  defendant.  Upon  this  state  of  case,  the  defendant  requested 
the  court  to  charge  the  jury  (2)  that  the  plaintiff  was  not  entitled  to 
recover  any  damages  "for  the  loss  of  the  association  and  services  of 
his  wife"  for  the  two  or  three  weeks  just  before  the  trial,  during 
which  they  had  been  living  together  as  husband  and  wife;  and,  further 
(charge  3),  that  if  the  jury  believe  the  evidence  "they  cannot  find  any 
damages  for  any  loss  of  services  of  his,  plaintiff's,  wife  alleged  to  have 
been  caused  by  the  alleged  wrongs  of  the  defendant."  These  requests 
proceed  upon  a  mistaken  idea  as  to  what  the  term  "services"  means  in 
this  class  of  actions.  It  does  not  mean  labor  performed.  It  does  not 
necessarily  mean  assistance  in  any  material  sense. 

The  deprivation  of  services  in  this  connection  does  not  necessarily 
or  ordinarily  involve  or  imply  a  loss  measurable  by  pecuniary  stand- 
ards of  value,  such  as  obtain  where  the  master  is  deprived  of  the  labor 
of  his  servant,  or  even  where  the  father  is  deprived  of  the  help  of 
his  daughter.  But  the  term,  as  employed  here,  is,  as  said  by  Judge 
Cooley,  "used  in  a  peculiar  sense,  and  fails  to  express  to  the  common 
mind  the  exact  legal  idea  intended  by  it.  Whatever  may  have  been 
the  case  formerly,"  he  continues,  "or  may  now  be  the  case  in  some 
states  of  society,  services  in  the  sense  of  labor  or  assistance,  such  as  a 
servant  might  perform  or  render,  are  not  always  given  by  or  expected 
from  the  wife ;  and,  if  an  action  were  to  put  distinctly  in  issue  the  loss 
of  such  services,  it  might  perhaps  be  shown  in  the  most  serious  cases 
that  there  was  really  no  loss  at  all.     But  it  could  not  be  reasonable 

7  See,  also,  Burnett  v.  Simpklns,  ante,  p.  141 ;  Berry  v.  Da  Costa,  post, 
p.  604;  Clem  v.  Holmes,  33  Grat.  (Va.)  722,  36  Am.  Rep.  793  (1880);  Willioit 
V.  Hancock,  5  Bush  (Ky.)  567  (18G9) ;  Ball  v.  Bruce,  21  111.  161  (1859). 

8  Part  of  the  opinion  is  omitted. 


Ch.  1)  IN    TORT    ACTIONS    AFFECTING    THE    PERSON.  493 

that  the  wrongdoer  should  escape  responsibility  because  the  family 
he  has  wronged  were  in  such  circumstances,  moved  in  such  circles,  or 
were  subject  to  such  claims,  by  reason  of  public  position  or  otherwise, 
that  physical  labor  by  the  wife  was  neither  expected  nor  desired.  The 
word  'service'  has  come  to  us  in  this  connection  from  the  times  in 
which  the  action  originated,  and  it  implies  whatever  of  aid,  assistance, 
comfort,  and  society  the  wife  would  be  expected  to  render  or  to  be- 
stow upon  her  husband,  under  the  circumstances  and  in  the  condition 
in  which  they  may  be  placed,  whatever  those  may  be.  That  services 
in  the  ordinary  sense  were  not  rendered  at  all  would  be  immaterial 
and  irrelevant,  except  as  the  fact  might,  under  some  circumstances, 
tend  to  show  a  want  of  conjugal  regard  and  affection,  and  thereby, 
tend  to  mitigate  the  damages."  Cooley,  Torts,  p.  226.  And  to  like 
effect  is  the  language  of  the  Supreme  Court  of  Massachusetts :  "A 
husband  is  not  master  of  his  wife,  and  can  maintain  no  action  for 
the  loss  of  her  services  as  his  servant.  His  interest  is  expressed  by 
the  word  'consortium' — the  right  to  the  conjugal  fellowship  of  the 
wife,  to  her  company,  co-operation,  and  aid  in  every  conjugal  rela- 
tion. *  *  *  A  husband  who  is  living  apart  from  his  wife,  if  he 
has  not  renounced  his  marital  rights,  can  maintain  the  action,  and  it  is 
not  necessary  for  him  to  prove  alienation  of  the  wife's  affection,  or 
actual  loss  of  her  society  and  assistance."  Bigaouette  v.  Paulet,  134 
Mass.  123,  45  Am.  Rep.  307. 

Again,  it  is  said :  "The  damages  allowed  in  suits  for  criminal  conver- 
sation are  penal  rather  than  compensatory,  for  the  plaintiff  is  entitled 
to  substantial  damages,  though  he  prove  no  resulting  expense  or  loss 
of  society  or  services."  9  Am.  &  Eng.  Enc.  Law,  p.  835.  And  the 
theory  that  the  injury  wrought  by  the  wrongdoer  in  such  cases  to  the 
husband  is  an  injury  to  his  feelings,  his  comfort,  his  pride,  his  affec- 
tions, and  to  his  conjugal  rather  than  his  property  rights,  and  is  to  be 
measured  by  standards  which  take  no  account  of  the  loss  inflicted 
upon  his  estate  by  the  deprivation  of  services  to  the  results  of  which 
he  is  entitled,  is  illustrated  and  has  been  fully  recognized  by  this  court 
in  Garrison  v.  Burden,  40  Ala.  513,  where  it  is  held  that  this  is  an 
action  "for  injuries  to  the  person  or  reputation"  of  the  plaintiff,  and 
for  that  reason  does  not  survive  the  death  of  the  wrongdoer,  under 
section  2600  of  the  Code.  The  manifest  purpose  of  the  charges  in 
question  was,  and  their  effect  would  have  been,  to  confine  the  jury, 
in  their  assessment  of  damages,  to  a  consideration  of  services  as  labor 
or  assistance  such  as  a  servant  might  perform  or  render;  and  they 
were,  therefore,  properly  refused.     *     *     *  » 

9  See,  also,  Palmer  v.  Crook,  ante,  p.  143 ;  Wilton  v.  Webster,  7  Car.  &  P. 
108  (183.5);  Bipiouette  v.  Paulet,  13^  Mass.  123,  4r>  Am.  Rep.  307  (1883); 
Matbeis  v.  Mazet,  1G4  Pa.  580,  30  Atl.  434  (1894) ;  Williams  v.  Williams,  20 
Colo.  rA,  37  Pac.  014  (1804). 

For  the  measure  of  damages  in  slander  and  libel  cases,  re-read  Farrand  v. 
Aldrich,  ante,  p.  79;  Siekra  v.  Small,  ante,  p.  136;  Swift  v.  Dickerman,  ante, 
p.  130 ;  Mahoney  v.  Belford,  ante,  p.  476,  note ;  Georgia  v.  Kepford,  ante,  p. 


494  DAMAGES  IN   CERTAIN   SPECIFIC   ACTIONS.  (Part    6 

DENVER  &  R.  G.  R.  CO.  v.  SPENCER  et  al. 
(Supreme  Court  of  Colorado,  1900.    27  Colo.  313,  61  Pac.  606,  51  L.  R.  A.  121.) 

This  action  was  commenced  by  the  appellees  to  recover  damages  for 
the  death  of  their  father,  caused  by  the  alleged  negligence  of  the  ap- 
pellant. 

Gabbert,  J.^**  *  *  *  The  verdict  was  in  the  sum  of  $4,000, 
which  appellant  contends  is  excessive.  The  right  of  appellees  to  main- 
tain this  action  is  purely  statutory.  It  did  not  exist  at  common  law. 
The  damages  which  they  are  entitled  to  recover  must  be  limited  -to 
those  of  a  compensatory  character — in  other  words,  to  such  pecuniary 
damages  as  they  have  sustained  by  reason  of  the  death  of  their  father. 
As  aptly  stated  by  the  late  Justice  Elliott  in  Pierce  v.  Conners,  20 
Colo.  178,  37  Pac.  721,  46  Am.  St.  Rep.  279 :  "The  true  measure  of 
compensatory  relief  in  an  action  of  this  kind,  under  the  act  of  1877, 
is  a  sum  equal  to  the  net  pecuniary  benefit  which  plaintiff  might  rea- 
sonably have  expected  to  receive  from  the  deceased  in  case  his  life 
had  not  been  terminated  by  the  wrongful  act,  neglect,  or  default  of 
defendant ;  *  *  *  ^^yj-  [^  niust  be  borne  in  mind  that  the  recovery 
allowable  is  in  no  sense  a  solatium  for  the  grief  of  the  living,  oc- 
casioned by  the  death  of  the  relative  or  friend,  however  dear.  It  is 
only  for  the  pecuniar)^  loss  resulting  to  the  living  party  entitled  to  sue, 
resulting  from  the  death  of  the  deceased,  that  the  statute  affords  com- 
pensation. This  may  seem  co'..l  and  mercenary,  but  it  is  unquestion- 
ably the  law."  At  the  time  of  his  death  his  wife  was  living,  and  sur- 
vived him  about  two  years.  The  appellees  were  in  no  manner  depend- 
ent upon  him  for  support.  The  mere  relationship  between  them  and 
deceased  cannot  be  made  the  basis  of  a  recovery  in  this  case,  however 
much  they  may  have  grieved  over  his  untimely  death.  Therefore, 
as  stated  in  the  former  opinion  in  this  case,  "the  pecuniary  loss,  if  any, 
that  resulted  to  them  by  reason  of  the  death,  was  in  being  deprived 
of  their  share  of  the  money  that  he  might  accumulate  during  his  ex- 
pectancy of  life."  Or,  under  the  evidence,  their  recovery  must  be 
limited  to  the  sum  which  the  father,  by  his  personal  exertions,  less  his 
necessary  personal  expenses,  and  those  of  his  wife  during  her  life, 
would  have  added  to  his  estate,  and  which  would  have  descended  to  the 
appellees,  as  his  heirs  at  law.    The  court  so  instructed  the  jury. 

Was  this  instruction  followed?     At  the  time  of  his  death,  deceased 

164;  Callahan  v.  Ingrain,  ante,  p.  138,  note;  LsTich  v.  Knight,  ante,  p.  446; 
Newman  v.  Stein,  ante,  p.  138,  note;  Hotchljiss  v.  Oliphant,  ante,  p.  143;  Prime 
V.  Eastwood,  ante,  p.  475 ;  Bennett  v.  Hyde,  ante,  p.  482. 

As  to  what  words  are  actionaltle  per  se,  see  Pollard  v.  Lyon,  91  U.  S.  225, 
23  L.  Ed.  308  (187.3).  As  to  recovery  for  mental  suffering  arising  from  slander, 
see  Terwilliger  v.  Wands.  17  N.  Y.  54,  72  Am.  Dec.  420  (1858)  ;  Prime  v.  East- 
wood, 45  Iowa,  640  (1877),  ante,  p.  475.  For  general  measure  of  damages,  see 
Fenstermalcer  v.  Tribune  Pub.  Co.,  13  Utah,  532,  45  Pac.  1097,  35  L.  B.  A 
611  (1896). 

10  Part  of  the  opinion  is  on)itted. 


Ch.  1)        IN  TORT  ACTIONS  AFFECTING  THE  PERSON.  495 

was  upward  of  68  years  of  age.  His  expectancy  of  life  was  about 
9^2  years.  There  is  testimony  to  the  effect  that  at  the  time  of  his 
death  his  annual  income,  arising  from  his  personal  exertions,  after 
deducting  his  personal  expenses,  equaled  the  sum  of  about  $1,000  per 
annum,  although  the  evidence  is  not  entirely  satisfactory  upon  this 
point,  for  the  reason  that  the  witness  testifying  on  this  subject  was 
not  certain  that  he  was  fully  advised  regarding  the  personal  expend- 
itures of  the  father.  The  money  earned  by  deceased  from  this  source 
consisted  of  a  salary  of  $1,500  per  annum  as  an  employe  of  a  bank, 
and  about  $500  more  per  annum,  earned  as  a  conveyancer  and  notary, 
in  connection  with  his  bank  duties.  He  had  considerable  income  from 
investments,  but  this  cannot  be  considered,  in  estimating  his  annual 
savings.  We  mention  this,  however,  because  it  appears  that  his  net 
worth  at  the  time  of  his  death  could  not  have  been  so  very  much  in 
excess  of  the  value  of  his  bank  stock,  which  was  $6,-100,  because  it 
appears  that  his  other  investments  were  incumbered  in  such  an  amount 
that,  after  deducting  interest,  there  was  but  little  left  in  the  way  of 
income  from  these  sources,  after  payment  of  taxes.  Had  he  lived 
the  full  term  of  his  expectancy,  and  during  that  period  been  able  at 
all  times  to  continue  to  engage  in  the  work  in  which  he  was  employed 
at  the  time  of  his  death,  his  net  personal  earnings  would  have  ex- 
ceeded much  more  than  the  damages  awarded. 

It  cannot  be  fairly  assumed,  however,  or  expected,  that,  at  his  ad- 
vanced age,  he  would  have  continued  to  labor  during  all  the  future 
years  of  his  life.  In  considering  this  question,  account  should  be  taken 
of  his  liability  to  illness,  his  incapability  of  further  exertions  by  reason 
of  age,  and  that  he  might,  on  account  of  his  years,  conclude  to  retire 
from  active  work ;  that,  in  all  probability,  his  age  would  soon  incapaci- 
tate him  from  discharging  his  duties  as  an  employe  in  the  bank,  in 
which  he  was  engaged;  that,  if  he  did  continue  to  earn  money  for 
a  portion  of  his  expectancy  of  life,  he  would  at  least  expend  a  part 
so  earned  for  personal  use  during  the  remaining  years.  All  these 
are  contingencies  which  must  be  considered.  Necessarily,  the  ascer- 
tainment of  damages,  dependent  upon  a  variety  of  circumstances  and 
future  contingencies,  is  difficult  of  exact  computation ;  but.  neverthe- 
less, they  cannot  be  presumed  and  arbitrarily  given.  Undoubtedly 
much  latitude  must  be  given  a  jury  in  cases  of  this  character,  but  there 
must  be  some  basis  of  facts  upon  which  to  predicate  a  finding  of  sub- 
.stantial  pecuniary  loss.  Diebold  v.  Sharp,  19  Ind.  App.  474,  49  N. 
K.  837. 

Except  for  the  statute,  appellees  could  not  maintain  this  action.  Its 
provisions  are  beneficent,  but  limited.  In  no  case  under  it  can  dam- 
ages exceed  the  sum  of  $5,000.  Taking  into  consideration  the  evi- 
dence upon  which  the  award  of  damages  is  based  in  this  case,  the 
contingencies  to  which  we  have  directed  attention,  the  improbability 
fhat  deceased,  during  the  remaining  years  of  his  life,  would  have 
saved  from  net  persona)  earnings  a  sum  anywhere  nearly  approximat- 


496  DAMAGES  IN  CERTAIN   SPECIFIC  ACTIONS.  (Part    6 

ing  the  damages  awarded,  and  the  disproportion  of  that  sum  to  his 
previous  accumulations,  it  is  evident  that  the  jurors  certainly  failed  to 
consider  the  instructions  of  the  court  on  the  subject  of  damages,  but 
must  have  been  influenced  by  considerations  other  than  those  which 
the  law  recognizes  as  elements  of  damages  in  such  cases.     *     *     *  n 


SAN  ANTONIO  &  A.  P.  RY.  CO.  v.  LONG  et  al. 

(Supreme  Court  of  Texas,  1894.     87  Tex.  148,  27  S.  W.  113,  24  L.  R.  A.  G37, 

47  Am.  St.  Rep.  87.) 

Gaines,  J.^^  The  plaintiffs  in  the  trial  court  (the  defendants  in  er- 
ror in  this  court)  are  the  sons  and  daughters  of  Mrs.  M.  C.  Long. 
They  brought  this  suit,  under  the  statute,  to  recover  damages  for  in- 
juries resulting  to  them  from  the  death  of  their  mother.  *  *  * 
The  deceased  left  surviving  her  neither  father  nor  mother,  and  that  the 
plaintiffs  (two  sons  and  four  daughters)  were  her  only  children;  the 
deceased  mother,  at  the  time  of  her  death,  had  property  amounting  in 
value  to  $18,500 ;  and  that  the  income  of  her  property  was  about 
$1,850.  All  of  this  except  about  $250,  which  was  used  in  her  own 
support,  she  devoted  to  the  assistance  of  her  children.     *     *     * 

Such  being  the  evidence  adduced  by  the  plaintiffs  upon  the  ques- 
tion of  the  amount  of  damages,  the  defendant  offered  in  evidence  the 
will  of  Mrs.  M.  C.  Long,  duly  probated,  in  which  she  devised  and  be- 
queathed all  of  her  estate  to  her  four  daughters.  To  the  reading  of 
the  will  in  evidence,  the  plaintiffs  objected,  and  their  objection  was 
sustained,  and  the  evidence  excluded.  This  action  of  the  court  raises 
the  serious  question  in  this  case,  and  it  is  one  which  is  of  first  impres- 
sion in  this  court.  In  an  action  for  injuries  resulting  in  death,  can  tlie 
defendant  show,  for  the  purpose  of  reducing  the  damages,  that  the 
plaintiffs  have  received,  by  devise  or  descent,  property  troni  the  es- 
tate of  the  deceased?  If  such  evidence  be  admissible  in  any  case 
of  like  character,  it  was  certainly  admissible  in  this  case.  The  au- 
thorities are  not  numerous,  and  the  expressions  of  the  courts  are  in 
an  apparent  conflict  upon  the  question. 

Among  the  cases  relied  upon  in  support  of  the  negative  is  that  of 
Railroad  Co.  v.  Barron,  5  Wall.  90,  18  L.  Ed.  591.  The  defendant  ask- 
ed the  court  to  charge  the  jury  "that  if  the  persons  for  whose  benefit 
this  action  is  brought  have  received,  in  consequence  of  the  death  of 
said  Barron,  and  out  of  his  estate  inherited  by  them  from  him,  a  pe- 
cuniary benefit  greater  than  the  amount  of  damages  which  could,  un- 
der any  circumstances,  be  recovered  in  this  action,  then,  as  a  matter  of 

11  Baker  v.  Bolton,  1  Camp.  493  (1808)  is  the  leading  case  holding  that  at 
common  law  there  was  no  recovery  for  the  death  of  a  human  being.  Thi? 
is  still  the  rule  in  England  in  so  far  as  Lord  Campbell's  act  is  not  applicable. 
Osborn  v.  Gillett,  L.  R.  8  Exch.  88  (1873). 

12  Part  of  the  opinion  is  omitted. 


Ch.  1)        IN  TORT  ACTIONS  AFFECTING  THE  PERSON.  497 

law,  they  have,  by  the  death  of  said  Barron,  sustained  no  actual  injurj 
for  which  compensation  can  be  recovered  in  this  action."  Upon  error 
to  the  Supreme  Court  of  the  United  States,  that  court  held,  in  effect, 
that  the  charge  was  properly  refused.  The  trial  court  had,  however, 
charged  the  jury,  among  other  things,  as  follows :  "In  this  case  the 
next  of  kin  are  the  parties  who  are  interested  in  the  life  of  the  deceased. 
They  were  interested  in  the  further  accumulations  which  he  might 
have  added  to  his  estate,  and  which  might  hereafter  descend  to  them. 
The  jury  have  the  right,  in  estimating  the  pecuniary  injury,  to  take 
into  consideration  all  the  circumstances  attending  the  death  of  Barron 
— the  relations  between  him  and  his  next  of  kin,  the  amount  of  his 
property,  the  character  of  his  business,  the  prospective  increase  of 
wealth  likely  to  accrue  to  a  man  of  his  age,  with  the  business  rnd  means 
which  he  had.  There  is  a  possibility,  in  chances  of  business,  that  Bar- 
ron's estate  might  have  decreased,  rather  than  increased,  and  this  pos- 
sibility the  jury  may  consider.  The  jury  may  also  take  into  considera- 
tion that  he  might  have  married,  and  his  property  descended  in  an- 
other channel.  And  there  may  be  other  circumstances  which  might  af- 
fect the  question  of  pecuniary  loss,  which  it  is  difficult  for  the  court  to 
particularize,  but  which  will  occur  to  you.  The  intention  of  the  statute 
was  to  give  a  compensation  which  the  widow,  if  any,  or  the  next  of  kin, 
might  sustain  by  the  death  of  the  party;  and  the  jury  are  to  determine, 
as  men  of  experience  and  observation,  from  the  proof,  what  that  loss 
is."  It  is  apparent,  we  think,  that  evidence  had  been  admitted  of  prop- 
erty received  by  inheritances  by  the  beneficiaries  from  the  estate  of  the 
deceased,  and  the  case  cannot  be  considered  as  a  decision  vipon  the  ques- 
tion of  the  admissibility  of  such  evidence.     *     *     * 

It  must,  however,  be  conceded  that  the  decisions  of  some  of  the 
courts  upon  similar  statutes  recognize  the  rights  of  minor  children,  at 
least,  to  recover  for  the  loss  of  individual  pecuniary  benefits  which 
would  probably  have  inured  to  them  by  the  continuance  of  the  life  of 
their  parent.  Tilley  v.  Railroad  Co.,  24  N.  Y.  471,  29  N.  Y.  252,  86 
Am.  Dec.  297 ;  Terry  v.  Jewett,  78  N.  Y.  338.  Under  the  statutes  of 
New  York,  the  recovery  is  for  the  benefit  of  the  next  of  kin,  and  is  to 
be  there  also  apportioned  as  under  the  statute  of  descent  and  distribu- 
tion. It  is  worthy  of  remark  that  under  such  a  statute  the  recovery  may 
go  to  remote  collateral  kindred,  who  have  no  interest  whatever  in  the 
life  of  their  relative,  except  the  prospective  shares  they  may  receive,  as 
distributees  of  his  estate,  upon  his  dying  intestate.  Where  such  is  the 
loss  to  be  recompensed,  it  is  no  answer  to  the  plaintiff's  demand  to  say 
to  him  that  he  has  not  been  damaged,  because  he  has  received  a  pe- 
cuniary benefit  from  the  death  of  the  deceased.  His  ground  of  com- 
plaint is  not  that  he  has  been  deprived  of  receiving  anything,  but  that 
the  amount  which  has  come  to  him  is  less  than  it  would  have  been  if  the 
life  of  the  deceased  had  been  prolonged. 

There  would  seem  to  be  an  important  difference  betM^een  statutes 
Gilb.Dam.— 32 


498  DAMAGES   IN  CERTAIN  SPECIFIC   ACTIONS.  (Part    6 

which  give  the  right  of  action  to  the  next  of  kin,  as  such,  and  the  stat- 
ute of  this  state  which  undertakes  to  confer  compensation  upon  the 
husband  or  wife  and  the  children  and  parents  of  the  deceased  only,  and 
which  requires  that  the  jury  shall  determine  separately  the  amount  to 
be  recovered  by  each  of  the  beneficiaries.  Where  the  right  of  action 
is  given  for  the  benefit  of  the  next  of  kin,  and  the  sum  recovered  is  to 
be  apportioned  as  under  the  statute  of  descent  and  distribution,  it  would 
seem  that  the  leading  purpose  is  to  give  compensation  for  some  loss 
suffered  by  them  all  in  common;  that  is  to  say,  the  damage  which  has 
accrued  to  them,  as  next  of  kin,  by  reason  of  the  loss  of  a  prospective 
increase  in  the  amount  of  the  estate  to  be  distributed.  Our  statute 
excludes  from  its  benefits  the  collateral  kindred,  and  its  leading  pur- 
pose seems  to  be  to  compensate  only  such  near  relatives  of  the  deceased 
as  may  be  dependent  upon  him  for  support,  or  other  aid  of  pecuniary 
value,  or  such  as  may  have  been  the  recipients  of  such  aid  or  support. 
It  may  be  that,  in  statutes  of  the  one  class,  special  injury  to  one  bene- 
ficiary may  be  considered  and  compensated,  though  it  is  difficult  to  see 
why  the  recovery  for  such  loss  should  be  distributed  in  a  fixed  propor- 
tion among  all ;  and  it  may  be,  also,  that  under  our  statute  the  loss  of 
a  prospective  increase  of  inheritance  may  be  an  element  of  damages. 
But,  under  the  latter,  each  beneficiary  recovers  for  his  own  special  in- 
jury. The  damages  must  be  actual,  and  for  loss  of  a  pecuniary  nature. 
Nothing  is  given  by  way  of  solace.  Under  such  a  law,  we  cannot  see 
how  it  can  be  maintained  that  one  has  been  damaged  by  the  death  when 
he  has  received  from  the  estate  of  the  deceased  property  exceeding  in 
value  all  the  prospective  benefits  which  would  have  accrued  to  him, 
had  the  death  not  ensued.     *     *     * 

The  English  statute  known  as  "Lord  Campbell's  Act,"  upon  which 
most,  if  not  all,  of  the  statutes  of  a  like  character  in  this  country  have 
been  modeled,  is,  in  respect  to  the  beneficiaries,  very  nearly  the  same 
as  the  statute  in  this  state.  The  action  is  for  the  benefit  of  "the  hus- 
band, wife,  parent  and  child"  of  the  deceased,  and  the  jury  are  to  ap- 
portion the  damages  among  the  beneficiaries.  The  only  substantial 
difiference  is  that  Lord  Campbell's  act  provides  that  under  the  term 
"parents"  shall  be  included  "grandparents."  In  an  action  brought  un- 
der that  act.  Lord  Campbell  himself,  who  presided  at  the  trial,  in- 
structed the  jury  that  in  assessing  the  damages  they  should  take  into 
consideration  the  amount  received  by  the  beneficiaries  on  an  accident 
insurance  policy  held  by  the  deceased.     *     *     * 

Statutes  giving  damages  for  injuries  resulting  in  death  necessarily 
deal  with  probabilities;  so  that  where  there  is  a  policy  on  the  life  of 
the  deceased,  payable  to  the  beneficiaries  under  the  statute,  the  probabil- 
ity is,  or  may  be,  that,  if  the  deceased  had  continued  to  live,  beneficiaries 
would  ultimately  have  received  the  insurance  money.  Hence,  they 
have  gained  nothing  by  the  premature  death,  except  an  acceleration 
of  the  payment.  Perhaps  sound  principles  would  require  the  jury  to 
take  into  consideration  the  use  of  the  money  during  the  period  of  ac- 


Ch.  1)        IN  TORT  ACTIONS  AFFECTING  THE  PERSON.  499 

cclcration.  *  *  *  But,  however  that  may  be,  the  case  is  very  dif- 
ferent where  the  only  aid  which  the  beneficiaries  have  received  from 
the  deceased,  during  liis  Hfc,  has  been  a  part  of  the  income  of  his  prop- 
erty, and  where,  upon  his  death,  the  title  to  the  corpus  of  such  proper- 
ty absolutely  vests  in  them;  and  we  are  therefore  of  the  opinion  that, 
in  a  case  involving  similar  facts,  they  should  be  admitted  in  evidence, 
to  be  considered  by  the  jury.  We  conclude  that  the  court  erred  in 
excluding  the  will  of  Mrs.  Long,  and  that  for  this  error  the  judgment 
must  be  reversed.     *     *     *  is 


MORGAN  v.  SOUTHERN  PAC.  CO. 

(Supreme  Court  of  California.  1S92.     95  Cal.  510,  30  Pac.  603,  17  L.  R.  A.  71, 

29  Am.  St.  Rep.  143.) 

Action  by  Flora  Morgan  against  the  Southern  Pacific  Company  to 
recover  damages  for  the  death  of  her  child  caused  by  defendant's 
negligence.    The  jury  gave  her  damages  in  the  amount  of  $20,000. 

McFarIvAND,  J.^*  *  *  *  There  was  no  averment  in  the  com- 
plaint of  any  special  damage,  and  no  averment  of  any  damage  at  all. 
except  the  general  statement  that  the  child  died,  "to  the  damage  of 
plaintiff  in  the  sum  of  fifty  thousand  dollars;"  and  there  was  no  evi- 
dence whatever  introduced  or  offered  upon  the  subject  of  damage. 
The  jury,  therefore,  had  nothing  before  them  upon  which  to  base 
damages  except  the  naked  fact  of  the  death  of  a  female  child  two 
years  old;  and  it  is  apparent,  at  first  blush,  that  "the  amount  of  the 
damages  is  obviously  so  disproportionate  to  the  injury  proved  as  to 
justify  the  conclusion  that  the  verdict  is  not  the  result  of  the  cool  and 
dispassionate  discretion  of  the  jury."  The  main  element  of  damage  to 
plaintiff  was  the  probable  value  of  the  services  of  the  deceased  until 
she  had  attained  her  majority,  considering  the  cost  of  her  support 
and  maintenance  during  the  early  and  helpless  part  of  her  life.  We 
think  that  the  court  erred  in  charging  that  "the  jury  is  not  limited 
by  the  actual  pecuniary  injury  sustained  by  her,  by  reason  of  the 
death  of  her  child."  An  action  to  recover  damages  for  the  death  of  a 
relative  w^as  not  known  to  the  common  law ;  it  is  of  recent  legislative 
origin.  There  are  statutes  in  many  of  the  American  states  providing 
for  such  an  action,  and  it  has  been  quite  uniformly  held  that  in  such 
an  action  the  plaintiff  does  not  represent  the  right  of  action  which 
the  deceased  would  have  had  if  the  latter  had  survived  the  injury, 
but  can  recover  only  for  the  pecuniary  loss  suffered  by  the  plaintiff 
on  account  of  the  death  of  the  relative ;  that  sorrow  and  mental  an- 
guish caused  by  the  death  are  not  elements  of  damage ;  and  that  noth- 
ing can  be  recovered  as  a  solatium  for  wounded  feelings.     *     *     * 

13  See,  also,  Terry  v.  .Tewett.  ante,  p.  405,  note. 
1*  Part  of  the  opinion  is  omitted. 


500  DAMAGES   IN  CERTAIN  SPECIFIC  ACTIONS.  (Part    6 

Beeson  v.  Mining  Co.,  57  Cal.  20,  is  a  leading-  case  on  the  subject, 
and  is  cited  by  all  the  cases  which  follow  it.  In  that  case  the  action 
was  brought  by  the  widow  for  the  death  of  her  husband,  and  the  ques- 
tion was  whether  or  not  the  lower  court  erred  in  allowing  evidence 
of  the  kindly  relations  between  the  plaintiff  and  the  deceased  during 
the  lifetime  of  the  latter.  The  court  sustained  the  ruling  of  the  court 
below,  but  clearly  upon  the  ground  that  those  relations  could  be  con- 
sidered only  in  estimating  the  pecuniary  loss.  The  court  say:  "It  is 
true  that  in  one  sense  the  value  of  social  relations  and  of  society  can- 
not be  measured  by  any  pecuniary  standard;  *  *  *  ^^^^  j^i  an- 
other sense,  it  might  be  not  only  possible,  but  eminently  fitting,  that  a 
loss  from  severing  social  relations,  or  from  deprivation  of  society, 
might  be  measured  or  at  least  considered  from  a  pecuniary  standpoint. 
*  *  *  If  a  husband  and  wife  were  living  apart  by  mutual  con- 
sent, neither  rendering  the  other  assistance  or  kindly  offices,  the  jury 
might  take  into  consideration  the  absence  of  social  relations  and  the 
absence  of  society  in  estimating  the  loss  sustained  by  either  from  the 
death  of  the  other.  So  if  the  husband  and  wife  had.  lived  together 
in  concord,  each  rendering  kindly  offices  to  the  other,  such  facts  might 
be  taken  into  consideration,  not,  as  the  books  say,  for  the  purpose  of 
affording  solace  in  money,  but  for  the  purpose  of  estimating  pecuniary 
losses.  The  loss  of  a  kind  husband  may  be  a  considerable  pecuniary 
loss  to  a  wife;  she  loses  his  advice  and  assistance  in  many  matters 
of  domestic  economy."  A  quotation  is  made  from  a  Pennsylvania 
case  where  the  same  rule  was  applied  to  the  loss  of  a  wife,  the  court 
saying  that  "certainly  the  service  of  a  wife  is  pecuniarily  more  valu- 
able than  that  of  a  mere  hireling."  The  Beeson  Case,  therefore,  does 
not  decide  that  the  jury  may  depart  from  a  pecuniary  standpoint  in 
assessing  damages ;  it  merely  holds  that  in  estimating  the  pecuniary 
losses  of  a  wife  from  the  death  of  her  husband  they  may  consider 
whether  or  not  the  deceased  was  a  good  husband,  able  and  willing  to 
provide  well  for  his  wife.  The  opinion  of  the  court  no  doubt  goes 
somewhat  further  in  this  direction  than  the  general  current  of  au- 
thorities, but  it  decides  nothing  more  than  above  stated.     *     *     * 

In  the  case  at  bar  the  jury  were  not  confined  by  the  instructions  to 
pecuniary  loss  or  any  other  kind  of  loss;  they  were  given  wide  range 
to  run  into  any  wild  and  excessive  verdict  which  their  caprice  might 
suggest.  We  do  not  think  that  the  complaint  is  defective  because  it 
does  not  specially  aver  the  loss  of  the  services  of  the  deceased ;  that 
was  a  natural  and  necessary  sequence  of  the  death.  It  was  not  special 
damage  necessary  to  be  averred.     *     *     *     Reversed. 


Ch.  1)  IN    TORT    ACTIONS    AFFECTING    THE    PERSON.  501 

DEMAREST  et  al.  v.  LITTLE. 
(Supreme  Court  of  New  Jersey,  1885.    47  N.  J.  Law,  28.) 

Magie,  J.^"^  This  action  was  brought  to  recover  damages  for  the 
death  of  plaintiff's  testator.  *  *  *  The  case  was  first  tried  in 
1883,  and  a  verdict  rendered  for  plaintiffs,  assessing  their  damages 
at  $30,000.  This  verdict  was  afterwards  set  aside  upon  a  rule  to  show 
cause.  *  *  *  The  case  has  been  again  tried,  and  the  verdict  has 
been  again  rendered  for  plaintiffs,  assessing  their  damages  at  $27,- 
500.     *     *     * 

The  action  is  created  by  statute,  which  supplies  the  sole  measure  of 
the  damages  recoverable  therein.  They  are  to  be  determined  exclu- 
sively by  reference  to  the  pecuniary  injury  resulting  to  the  widow  and 
next  of  kin  of  deceased  by  his  death.  The  injury  to  be  thus  recovered 
for  has  been  defined  by  this  court  to  be  "the  deprivation  of  a  reason- 
able expectation  of  a  pecuniary  advantage  which  would  have  resulted 
by  a  continuance  of  the  life  of  deceased."  Paulmier  v.  Railroad  Co., 
34  N.  J.  Law,  151.  Compensation  for  such  deprivation  is  therefore 
the  sole  measure  of  damage  in  such  cases.     *     *     * 

Deceased  left  no  widow,  and  but  three  children.  All  of  them  had 
reached  maturity.  Two  sons  were  self-supporting;  the  daughter  was 
married.  He  owed  no  present  duty  of  support,  and  there  is  nothing 
to  show  any  fixed  allowance  or  even  casual  benefactions  to  them. 
They  are  therefore  deprived  of  no  immediate  pecuniary  advantage 
derivable  from  him.  At  his  death  he  was  in  business,  in  partnership 
with  his  sons  and  son-in-law.  All  the  partners  gave  attention  to  the 
business  and  the  capital  was  furnished  by  deceased.  His  death  dis- 
solved the  partnership  and  deprived  the  surviving  partners  of  such 
benefit  as  they  had  derived  from  his  credit,  capital,  skill  and  reputa- 
tion. But  the  injury  thus  resulting  is  not  within  the  scope  of  this 
statute,  which  gives  damages  for  injuries  resulting  from  the  severance 
of  a  relation  of  kinship  and  not  of  contract.  No  damages  could  be 
awarded  on  that  ground. 

Defendants  strenuously  urge  that,  outside  of  the  partnership  or  in 
the  event  of  its  dissolution,  the  next  of  kin  had  a  reasonable  expecta- 
tion of  deriving  from  the  parental  relation  an  advantage  by  way  of 
services  rendered  or  counsel  given  by  deceased  in  their  affairs.  A 
claim  of  this  sort  must  be  carefully  restricted  within  the  limits  of 
the  statute.  The  counsels  of  a  father  may,  in  a  moral  point  of  view, 
be  of  inestimable  value.  The  confidential  intercourse  between  parent 
and  child  may  be  prized  beyond  measure,  and  its  deprivation  may  be 
productive  of  the  keenest  pain.  But  the  legislature  has  not  seen  fit 
to  permit  recovery  for  such  injuries.  It  has  restricted  recovery  to 
the  pecuniary  injury;  that  is,  the  loss  of  something  having  pecuniary 
value. 

15  Tart  of  the  opinion  Is  omitted. 


502  DAMAGES   IN  CERTAIN  SPECIFIC  ACTIONS.  (Part    6 

Now,  it  may  with  some  reason  be  anticipated  that  a  father,  out  of 
love  and  affection,  might,  if  circumstances  rendered  it  proper,  per- 
form gratuitous  service  for  a  child,  which  by  rendering  unnecessary 
the  employment  of  a  paid  servant,  would  be  of  pecuniary  value,  and 
that  he  might,  by  advice  in  respect  to  business  affairs,  be  of  a  possible 
pecuniary  benefit.  But  whether  such  an  anticipation  is  reasonable  or 
not  must  depend  on  the  circumstances.  Considering  the  age,  the 
assured  position,  the  business  and  other  relations  of  these  children, 
it  is  obvious  that  the  probability  of  any  pecuniary  advantage  to  accrue 
to  them  in  these  modes  was  very  small.  Indeed,  it  would  not  be  too 
much  to  say  that  resort  must  be  had  to  speculation  to  discover  any 
such  advantage.  At  all  events,  compensation  for  this  injury  in  this 
case  could  not  exceed  a  small  sum  without  being  excessive. 

The  principal  basis  for  plaintiff's  claim  is  obviously  this :  That  the 
death  of  deceased  put  an  end  to  accumulations  which  he  might  have 
thereafter  made  and  which  might  have  come  to  the  next  of  kin.  De- 
ceased had  accumluated  about  $70,000,  all  of  which,  except  $10,000 
capital  invested  in  the  business,  seems  to  have  been  placed  in  real 
estate  and  securities  as  if  for  permanent  investment.  By  his  will  the 
bulk  of  his  property  was  given  to  his  children.  At  his  death  he  had 
no  other  sources  of  income  than  his  investments  and  his  business. 

In  determining  the  probability  of  accumulations  by  deceased  if  he 
had  continued  in  life,  no  account  should  be  taken  of  the  income  de- 
rivable from  his  investments.  These  have  come  in  bulk  to  the  chil- 
dren, who  may,  if  they  choose,  accumulate  such  income.  A  depriva- 
tion of  the  probability  of  his  accumulating  therefrom  is  no  pecuniary 
injury.  On  the  contrary,  it  is  rather  a  benefit  to  them  to  receive  at 
once  the  whole  fund  in  lieu  of  the  mere  contingency  or  probability 
of  receiving  it,  though  with  its  accumulations  (at  best  uncertain),  in 
the  future.  Indeed,  the  benefit  thus  accruing  to  the  next  of  kin  in 
receiving  at  once  this  whole  property,  in  the  view  of  one  of  the  court, 
is  at  least  equivalent  to  the  present  value  of  the  probability  of  their 
receiving  it  hereafter,  if  deceased  had  continued  in  life,  with  all  his 
probable  future  accumulations  from  any  source  whatever,  in  which 
case  it  is  evident  that  his  death  has  not  resulted  in  any  pecuniary  in- 
jury to  them.  But  without  adopting  this  view  of  the  evidence,  it  is 
plain  that  in  determining  probable  future  accumulations  attention 
should  be  restricted  to  such  as  would  arise  from  the  labor  of  deceased 
in  his  business.  His  receipts  from  the  business  for  the  two  years  it 
had  been  conducted  were  proved.  What  he  expected  was  not  proved, 
but  left  to  be  inferred  for  his  mode  of  life.  At  death  he  was  about 
fifty-six  and  a  half  years  old,  and  by  the  proofs  had  an  expectation  of 
life  of  sixteen  and  seven-tenths  years. 

From  these  facts  the  jury  were  to  find  what  deceased  would  probably 
have  accumulated,  what  probability  there  was  that  his  next  of  kin 
would  have  received  his  accumulations,  and  then  what  sum  in  hand 
would  compensate  them  for  being  deprived  of  that  probability.     In 


IN  TORT  ACTIONS  AFFKCTIXO  TDK  PERSON.  503 

what  manner  the  jury  attempted  to  solve  this  problem  we  cannot  as- 
certain. Plaintiffs'  counsel  attempts  to  show  the  correctness  of  the 
result  reached,  by  calculation.  He  assumes  the  income  of  deceased 
from  his  business  during  the  last  year  as  the  annual  income  likely 
to  be  obtained,  and  deducts  only  $1,000  each  year  as  the  probable  ex- 
penditure of  deceased,  and  then  finds  the  present  worth  of  the  net 
income  so  determined  for  the  deceased's  expectation  of  life  is  $27,- 
710.32. 

This  calculation  tests  the  propriety  of  this  verdict,  and  in  my  judg- 
ment conclusively  shows  that  it  was  rather  the  result  of  sympathy  or 
prejudice  than  a  fair  deduction  from  the  evidence.  For,  assuming  the 
amount  attributable  to  the  loss  of  deceased's  services  was  but  small 
(and  if  more  it  was  excessive),  the  award  of  the  jury  on  this  account 
was  but  a  few  hundred  dollars  less  than  the  present  worth  of  the  full 
net  income  if  received  for  his  full  expectancy  of  life.  To  reach  such  a 
result  the  jury  must  have  found  every  one  of  the  following  contingen- 
cies in  favor  of  the  next  of  kin,  viz. :  That  deceased,  who  had  already 
acquired  a  competence,  would  have  continued  in  the  toil  of  business 
for  his  full  expectancy  of  life;  that  he  would  have  retained  sufficient 
health  of  body  and  vigor  of  mind  to  enable  him  to  do  so,  and  as  suc- 
cessfully as  before;  that  he  would  have  been  able  to  avoid  the  losses 
incident  to  business,  and  would  have  safely  invested  his  accumulations ; 
and  that  the  next  of  kin  would  have  received  such  accumulations  at 
his  death.  A  verdict  which  attributes  no  more  weight  than  this  has,  to 
the  probability  that  one  or  more  of  all  these  contingencies  would  hap- 
pen, cannot  have  proceeded  from  a  fair  consideration  of  the  case  made 
by  the  evidence.     *     *     *  ^* 

18  Pain  and  suffering  undergone  by  the  deceased  prior  to  his  death  are  not 
proper  elements  of  damage  in  this  action.  EHvyer  v.  C.  St.  P.,  M.  &  O.  Ry. 
Co.,  84  Iowa,  479,  51  N.  W.  244,  35  Am.  St.  Rep.  322  (1892). 

See,  also.  Sherlock  v.  Ailing,  44  Ind.  199  (1873) ;  Terry  v.  Jewett,  ante.  p.  405, 
note;  Insurance  Co.  v.  Branie,  95  U.  S.  754,  24  L.  Ed.  .580  (1877);  Grosso  v.  D., 
L.  &  W.  R.  R.  Co.,  50  N.  J.  Law,  317,  13  Atl.  233  (1SS8) ;  Hyatt  v.  Adams,  16 
Mich.  180  (18G7) ;  C.  I.  Co.  v.  N.  Y.  &  N.  H.  R.  R  Co.,  25  Conn.  265,  65  Am. 
Dec.  571  (1856) ;  Whitford  v.  P.  R.  R.  Co.,  23  N.  T.  465  (1801) ;  Tilley  v.  N. 
Y.  C.  &  H.  R.  R.  Co.,  24  N.  Y.  471  (1862) ;  Etherington  v.  P.,  P.  &  C.  I.  R.  R. 
Co.,  88  N.  Y.  641  (1882) ;  Howard  Co.  v  Legg,  93  Ind.  523,  47  Am.  Rep.  390 
(1884) ;  P.  R.  R.  Co.  v.  Butler,  57  Pa.  339,  98  .\m.  Dec.  229  (1808).  For  English 
decisions  under  Lord  Campbell's  act,  see  Pym  v.  Railway  Co.,  4  Best  &  S.  403 
(1803) ;  Bradburn  v.  Railway  Co.,  L.  R.  10  Exch.  1  (1874),  and  Railway  Co. 
V.  Jennings,  L.  El.  13  App.  Cas.  800  (1888). 


504  DAMAGES  IN  CERTAIN  SPECIFIC  ACTIONS.  (Part   6 

SECTION  2.— AFFECTING  PROPERTY. 
I.  Realty. 


DWIGHT  V.  EEMIRA,  C.  &  N.  R.  CO. 

(Court  of  Appeals  of  New  York,  1892.     132  N.  Y.  109,  30  N.  E.  398.) 

Parker,  J.^^  The  judgment  awards  to  the  plaintiff  $503  for  dam- 
ages occasioned  by  the  defendant's  negligence  in  setting  on  fire  and 
destroying  21  apple  trees,  2  cherry  trees,  and  2^/^  tons  of  standing 
grass,  and  also  injuring  7  apple  trees,  the  property  of  plaintiff.  The 
only  question  presented  on  this  appeal  is  whether  the  proper  measure 
of  damages  was  adopted  on  the  trial. 

A  witness  called  by  the  plaintiff  was  asked:  "Question.  What 
were  those  twenty-one  trees  worth  at  the  time  they  were  killed?" 
Objection  was  made  that  the  evidence  did  not  tend  to  prove  the  prop- 
er measure  of  damages,  but  the  objection  was  overruled,  and  the 
answer  was :  "Answer.  I  should  say  they  were  worth  fifty  dollars 
apiece."  Similar  questions  were  propounded  as  to  the  other  trees ;  a 
like  objection  interposed ;  the  same  ruling  made ;  answers  to  the  same 
effect,  except  as  to  value,  given ;  and  appropriate  exceptions  taken. 
Testimony  was  also  given,  tending  to  prove  that  the  land  burned  over 
by  the  fire  was  depreciated  in  value  $30  per  acre.  The  only  evidence 
offered  by  the  plaintiff,  touching  the  question  of  damages,  was  of  the 
character  already  alluded  to. 

Fruit  trees,  like  those  which  are  the  subject  of  this  controversy, 
have  little  if  any  value  after  being  detached  from  the  soil,  as  the  wood 
cannot  be  made  use  of  for  any  practical  purpose ;  but,  while  connected 
with  the  land,  they  have  a  producing  capacity  which  adds  to  the  value 
of  the  realty.  Necessarily  the  testimony  adduced  tended  to  show,  not 
the  value  of  the  trees  severed  from  the  freehold,  but  their  value  as 
bearing  trees,  connected  with  and  depending  on  the  soil  for  the  nourish- 
ment essential  to  the  growth  of  fruit.  How  much  was  the  realty,  of 
which  the  trees  formed  a  part,  damaged,  was  the  result  aimed  at  by 
the  questions  and  attempted  to  be  secured  by  the  answers.  Can  the 
owner  of  an  injured  freehold  because  the  trees  taken  or  destroyed  hap- 
pen to  be  fruit  instead  of  timber  trees,  have  his  damages  measured  in 
that  manner?  is  the  question  presented  now,  for  the  first  time,  in  this 
court,  so  far  as  we  have  observed. 

Where  timber  forming  part  of  a  forest  is  fully  grown,  the  value  of 
the  trees  taken  or  destroyed  can  be  recovered.  In  nearly  all  jurisdic- 
tions, this  is  all  that  may  be  recovered;  and  the  reason  assigned  for  it 

17  Part  of  the  opinion  is  omitted. 


Ch.  1)  IN    TORT    ACTIONS    AFFECTING    PROPERTY.  505 

is  that  the  realty  has  not  been  damaged,  because,  the  trees  having  been 
brought  to  maturity,  the  owner  is  advantaged  by  their  being  cut  and 
sold,  to  the  end  that  the  soil  may  again  be  put  to  productive  uses.  3 
Suth.  Dam.  p.  374;  3  Sedg.  Dam.  (8th  Ed.)  p.  45.  *  *  *  In  this 
state  it  is  settled  that  even  where  full-grown  timber  is  cut  or  destroye4 
the  damage  to  the  land  may  also  be  recovered,  and  in  such  cases  the 
measure  of  damages  is  the  difference  in  the  value  of  the  land  before 
and  after  the  cutting  or  destruction  complained  of.  Argotsinger  v. 
Vines,  82  N.  Y.  308;  Van  Deusen  v.  Young,  29  N.  Y.  36;  Easter- 
brook  V.  Railroad  Co.,  51  Barb.  94.  The  rule  is  also  applicable  to  nurs- 
ery trees  grown  for  market,  because  they  have  a  value  for  transplant- 
ing. The  soil  is  not  damaged  by  their  removal,  and  their  market  value 
necessarily  furnishes  the  true  rule  of  damages.  3  Sedg.  Dam.  (8th 
Ed.)  p.  48;  Birket  v.  Williams,  30  111.  App.  451.  Coal  furnishes  an- 
other illustration  of  the  rule  making  the  value  of  the  thing  separated 
from  the  realty,  although  once  a  part  of  it,  the  measure  of  damages, 
where  it  has  a  value  after  removal,  and  the  land  has  sustained  no  in- 
jury because  of  it. 

On  the  other  hand,  cases  are  not  wanting  where  the  value  of  the 
thing  detached  from  the  soil  would  not  adequately  compensate  the 
owner  for  the  wrong  done,  and  in  those  cases  a  recovery  is  permitted, 
embracing  all  the  injury  resulting  to  the  land.  This  is  the  rule  where 
growing  timber  is  cut  or  destroyed.  Because  not  yet  fully  developed, 
the  owner  of  the  freehold  is  deprived  of  the  advantage  which  would 
accrue  to  him  could  the  trees  remain  until  fully  matured.  His  damage, 
therefore,  necessarily  extends  beyond  the  market  value  of  the  trees 
after  separation  from  the  soil,  and  the  difference  between  the  value  of 
the  land  before  and  after  the  injury  constitutes  the  compensation  to 
which  he  is  entitled.  Longfellow  v.  Quimby,  33  Me.  457;  Chipman 
V.  Hibberd,  6  Cal.  1G3 ;  Wallace  v.  Goodall,  18  N.  H.  439-456 ;  Hayes 
V.  Railroad  Co.,  45  Minn.  17-20,  47  N.  W.  260.  In  Wallace's  Case, 
supra,  the  court  said :  "The  value  of  young  timber,  like  the  value  of 
growing  crops,  may  be  but  little  when  separated  from  the  soil.  The 
land,  stripped  of  its  trees  may  be  valueless.  The  trees,  considered  as 
timber,  may  from  their  youth  be  valueless;  and  so  the  injury  done  to 
the  plaintiff  by  the  trespass  would  be  but  imperfectly  compensated 
unless  he  could  receive  a  sum  that  would  be  equal  to  their  value  to  him 
while  standing  upon  the  soil."  The  same  rule  prevails  as  to  shade 
trees,  which,  although  fully  developed,  may  add  a  further  value  to  the 
freehold  for  ornamental  purposes,  or  in  furnishing  shade  for  stock. 
Nixon  V.  Stillwell,  52  Hun,  353,  5  N.  Y.  Supp.  248,  and  cases  cited  su- 
pra. The  current  of  authority  is  to  the  effect  that  fruit  trees  and  orna- 
mental or  growing  trees  are  subject  to  the  same  rule.     *     *     * 

It  is  apparent  from  the  authorities  *  *  *  that  in  cases  of  in- 
jury to  real  estate  the  courts  recognize  two  elements  of  damage:  (1) 
The  value  of  the  tree  or  other  thing  taken  after  separation  from  the 
freehold,  if  it  have  any;    (2)  the  damage  to  the  realty,  if  any,  occa- 


506  DAMAGES  IN   CERTAIN  SPECIFIC  ACTIONS.  (Part   6 

sioned  by  the  removal.  *  *  *  a  party  may  be  content  to  accept 
the  market  value  of  the  thing  taken  when  he  is  also  entitled  to  recover 
for  the  injury  done  to  the  freehold.  But  if  he  asserts  his  right  to  go 
beyond  the  value  of  the  thing  taken  or  destroyed  after  severance  from 
the  freehold,  so  as  to  secure  compensation  for  the  damage  done  to  his 
land  because  of  it,  then  the  measure  of  damages  is  the  difference  in 
value  of  the  land  before  and  after  the  injury.  In  this  case  the  plain- 
tiff was  not  satisfied  with  a  recovery  based  on  the  value  of  the  trees  de- 
stroyed, after  separation  from  the  realty,  of  which  they  formed  a  part 
— as  indeed  he  should  not  have  been,  as  such  value  was  little  or  nothing 
— so  he  sought  to  obtain  the  loss  occasioned  to  the  land  by  reason  of 
the  destruction  of  an  orchard  of  fruit-bearing  trees,  which  added  large- 
ly to  its  productive  value.  This  was  his  right,  but  the  measure  of  dam- 
ages in  such  a  case  is,  as  we  have  observed,  the  difference  in  value  of 
the  land  before  and  after  the  injury;  and  as  this  rule  was  not  follow- 
ed, but  rejected,  on  the  trial,  and  a  method  of  proving  damages  adopted 
not  recognized  nor  permitted  by  the  courts,  the  judgment  should  be 
reversed.     *     *     * 


McMAHON  v.  CITY  OF  DUBUQUE. 

t  of  Iowa,  189S.     107  Iowa,  G2,  71 
143.) 

See  ante,  p.  346,  for  a  report  of  the  case. 


(Supreme  Court  of  Iowa,  189S.     107  Iowa,  G2,  77  N.  W.  517,  70  Am.  St.  Rep. 

143.) 


STOUDENMIRE  v.  DE  BARDELABEN. 

(Supreme  Court  of  Alabama,  1888.     85  Ala.  85,  4  South.  723.) 

The  bill  in  this  case  was  filed  on  the  2d  June,  1882,  by  J.  D.  Stouden- 
mire,  against  Warren  L.  De  Bardelaben,  and  sought  an  account  of 
waste,  alleged  to  have  been  committed  by  the  defendant  on  lands  be- 
longing to  his  wife,  Mrs.  Caroline  W.  De  Bardelaben,  since  deceased, 
who  was  the  mother  of  the  complainant  by  a  former  husband.  The  al- 
leged waste  was  committed  in  1872,  on  a  tract  of  land  which  Mrs.  De 
Bardelaben  held  under  the  will  of  her  former  husband,  called  the  "Home 
Place,"  and  consisted  in  the  removal  of  the  dwelling  house  and  other 
buildings  thereon  to  the  adjoining  lands  of  said  Warren  L.  Mrs.  De 
Bardelaben  died  in  1878,  and  by  her  last  will  and  testament,  which  was 
duly  admitted  to  probate  in  October,  1878,  devised  and  bequeathed  all 
her  property,  "real  and  personal,  of  every  kind  and  description,"  to 
her  son,  the  complainant.^* 

Clopton,  J.^^  *  *  *  'phg  evidence  shows  that  the  houses  were 
removed  with  the  consent,  if  not  by  direction,  of  the  wife  of  de- 

18  The  statement  is  abridged  from  that  of  the  official  report. 

19  Part  of  the  opinion  is  omitted. 


Ch.  1)  IN    TORT    ACTIONS    AFFECTING    PROPERTY.  507 

fendant.    It  is  true  the  defendant  has  the  benefit  of  the  houses,  being 
located  on  his  land,  but  this  does  not  of  itself  make  him  responsible 
for  the  value  of  the  houses,  as  for  a  conversion.    If  removed  with  her 
consent,  there  was  no  conversion  as  against  the  mother  of  complam- 
ant.    Evidence  of  their  value  may  be  relevant  as  affecting  the  inquiry 
in  regard  to  the  injury  done  to  the  land.    But  should  the  value  of  the 
houses  be  adopted  as  the  rule  of  damages  the  complainant  would  re- 
cover, as  shown  by  the  evidence  and  the  report  of  the  register,  com- 
pensation for  the  waste  committed  by  their  removal,  exceeding  the  en- 
tire value  of  the  land  with  the  houses  remaining  on  it ;   which  would 
be  unjust  to  defendant.    Under  the  circumstances  of  the  case,  shown 
by  the  evidence,  the  complainant  is  not  entitled  to, recover  more  than 
the  actual  damages  suffered  by  the  mother,  which  consists  in  the  in- 
jury done  the  land— its  diminution  in  value— by  the  removal  of  the 
houses ;   that  is,  the  difference  between  the  market  value  before  and 
after  the  houses  were  removed.     Chipman  v.  Hibberd,  6  Cal.  162; 
Achey  V.  Hull,  7  Mich.  423  ;  Clark  v.  Zeigler,  79  Ala.  346.    The  regis- 
ter reported  that  the  difference  in  value,  with  and  without  the  houses, 
is,  according  to  the  testimony  of  defendants'  witnesses,  including  in- 
terest, $1,621.85,  and  that  complainant  offered  no  testimony  as  to  such 
difference  in  value.     The  chancellor  decreed  this  amount  in  favor  of 
complainant,  and,  on  a  consideration  of  the  entire  evidence,  his  decree 
appears  substantially  correct.     *     *     * 


JACKSONVILLE,  T.  &  K.  W.  RY.  CO.  v.  PENINSULAR  LAND, 
TRANSP.  &  MFG.  CO. 

(Supreme  Court  of  Florida,  1891.    27  Fla.  1,  157,  9  South.  GGl,  17  L.  R.  A. 

33,  65.) 

See  ante,  p.  349,  for  a  report  of  the  case. 


BALTIMORE  &  O.  R.  CO.  v.  BOYD. 

iSunreme  Court  of  Maryland,  1887.     67  Md.  32,  10  Ati.  315,  1  Am.  St.  Rep. 

3G2.) 

The  defendant  company  entered  upon  and  used  for  several  years 
plaintiff's  vacant  and  unimproved  lot  as  a  bed  for  its  railroad  track 
under  defective  condemnation  proceedings.  This  action  is  brought 
for  the  repeated  trespasses. 

Alvey,  C.  J.^°  *  *  *  The  strip  of  ground  belonging  to  the 
plaintiff  s' has  been  continuously  and  beneficially  occupied  by  the  de- 
fendant, as  the  bed  of  its  railroad  tracks,  since  the  death  of  Philip 
D.  Boyd  to  the  time  of  bringing  the  last  suit;    and  for  such  use  of 

2  0  Part  of  the  opiuion  is  omitted,  and  the  statement  of  facts  is  rewritten. 


508  DAMAGES  IN  CERTAIN  SPECIFIC  ACTIONS.  (Part   6 

the  land  a  reasonable,  but  a  substantial,  compensation  ought  to  be  paid. 
It  is  true,  there  is  no  evidence  whatever  of  any  special  damages  sus- 
tained, or  that  the  plaintiffs  were  hindered  or  obstructed  in  any  pro- 
posed use  of  their  lot,  by  reason  of  the  presence  and  use  of  the  railroad 
tracks;  but,  nevertheless,  we  are  of  opinion  that  the  plaintiffs  are  en- 
titled to  a  reasonable  compensation  for  the  use  of  their  land,  and  we 
think  this  is  measured  by  what  would  be  a  fair  rental  value  for  the 
ground,  occupied  as  it  has  been,  for  the  time  covered  by  the  actions, 
and  nothing  more.  In  such  cases  as  the  present,  where  there  is  nothing 
to  show  that  any  special  damage  has  been  suffered,  the  principle 
seems  to  be  established  by  many  respectable  authorities  that  the  plain- 
tiff is  entitled  to  recover  such  compensation  as  the  use  of  the  ground 
was  worth,  during  the  time  and  for  the  purpose  it  was  occupied.  It 
has  been  so  held  in  several  cases,  and  we  need  only  refer  to  McWil- 
liams  V.  Morgan,  75  111.  473;  City  of  Chicago  v.  Huenerbein,  85  111. 
594,  28  Am.  Rep.  626;  Ward  v.  Warner,  8  Mich.  508.     *     *     *  21 

21  Finch,  J.,  in  Barrick  v.  ScliiEferdecker,  123  N.  T.  52,  25  N.  E.  365  (1890): 
"Tlie  parties  were  adjoining  owners,  and  tlie  defendant,  using  lier  building 
for  tlie  storage  of  ice,  caused  injury  to  tlie  plaintiff's  dwelling  bouse.  The 
melting  of  tlie  ice  occasioned  a  dampness  which  struck  through  the  walls 
of  the  dwelling,  and,  beyond  an  injury  to  the  structure,  made  it  so  unsafe 
and  unfit  for  occupation  as  to  have  seriously  diminished  its  rental  value.  The 
plaintiff  brought  an  equitable  action  so  far  as  the  relief  demanded  was  con- 
cerned. She  asked  for  an  injunction  to  prevent  the  continuance  of  the  nui- 
sance, and  for  damages.  Under  the  defendant's  objection  and  exception,  she 
was  allowed  to  prove  the  loss  of  rental  value  to  the  time  of  the  trial,  and 
then  the  cost  of  repairing  the  injury  done,  and  putting  the  dwelling  into  a 
condition  to  be  unaffected  by  the  proximity  of  the  ice;  and,  in  addition  to 
that,  the  permanent  depreciation.  No  instructions  were  given  to  the  jury 
limiting  or  guiding  their  action  upon  this  evidence,  but  they  were  left  to  de- 
termine the  damages  from  the  proof  given,  and  in  their  own  way.  They  ren- 
dered a  verdict  for  the  plaintiff  of  .$1,000.  The  court  refused  to  grant  an  in- 
junction, and  gave  no  equitable  relief,  but  allowed  the  judgment  for  damages 
to  stand.  That  judgment  must  be  reversed  for  the  error  in  admitting  evi- 
dence relating  to  the  damages.  Although  the  complaint  demanded  equitable 
relief,  no  case  for  it  was  made,  and  none  awarded.  The  injury  complained  of 
was  by  no  means  permanent  in  its  character,  and  resulted  from  the  use  of  the 
defendant's  building  as  an  ice  house,  and  the  melting  of  the  ice  therein.  She 
might  elect  to  discontinue  that  use,  and,  if  equitable  relief  had  been  granted, 
would  have  had  the  option  to  have  discontinued  the  nuisance,  and  so  to  have 
prevented  a  permanent  depreciation  of  value,  or,  continuing  it,  to  obtain  the 
right  so  to  do  by  paying  the  resulting  depreciation,  as  the  court  might  deter- 
mine. But  on  this  trial  the  depreciation  was  proved  without  an  award  of 
equitable  relief,  and  double  damages  may  have  been  the  consequence  of  the 
proof.  The  rental  value  to  the  time  of  the  trial,  and,  in  addition,  the  sum 
necessary  to  repair  plaintiffs  house,  and  put  it  in  condition  which  would 
prevent  future  injury  from  the  same  cause,  were  first  shown,  and  their  ag- 
gregate would  cover  the  total  damages  possible  to  be  sustained.  When  to  that 
permanent  depreciation  is  added,  damages  are  given  for  what  cannot  occur. 
The  cost  of  prevention  and  the  result  of  continuance  cannot  both  be  given. 
The  award  of  the  one  must  necessarily  exclude  the  other." 


Ch.  1)  IN    TORT    ACTION'S    AFFECTING    PROPERTY.  509 

FOLSOM  V.  APPLE  RIVER  LOG  DRIVING  CO. 

(Supreme  Court  of  Wisconsin,  1877.    41  Wis.  602.) 

CoLEj  J.^^  *  *  *  It  appears  that  the  plaintiff  owned  meadow 
land  lying  along  the  adjacent  to  Apple  river,  from  which  he  was  ac- 
customed to  cut  hay.  It  is  alleged  that  these  meadows  were  over- 
flowed by  large  quantities  of  water  which  were  discharged  from  the 
dams  of  the  defendant  during  the  season  for  driving  logs,  which  usu- 
ally continued  from  about  the  middle  of  May  until  about  the  first  of 
July,  and  the  hay  and  grass  thereon  were  destroyed  or  injured  in 
value  in  consequence  of  such  flowage.  The  plaintiff  claimed  that  he 
was  entitled  to  recover  for  such  injury  the  value  of  the  standing  grass 
which  was  totally  destroyed,  and  the  depreciation  in  the  remainder 
resulting  from  the  flowing.  The  defendant  claimed,  and  asked  the 
court  so  to  instruct  the  jury,  that  if  they  found  from  the  evidence  that 
the  plaintiff's  premises  were  injured  and  overflowed  by  the  act  of  the 
defendant,  the  measure  of  damages  was  the  difference  between  the 
rental  value  of  the  premises  had  they  not  been  injured,  and  the  rental 
value  with  the  injury,  together  with  interest  on  the  same.  The  learned 
circuit  judge  adopted  the  rule  as  claimed  by  the  plaintiff,  as  affording 
the  true  measure  of  damages.  We  think  this  ruling  was  correct.  The 
hay  was  partly  grown  when  injured  or  destroyed,  and  it  seems  to  us 
that  the  net  presumed  value  of  the  hay,  less  its  actual  value,  measured 
the  actual  damages  sustained.  Suppose  it  had  been  a  crop  of  wheat 
nearly  ripe:  would  it  be  just  to  allow  the  plaintiff  only  the  difference 
between  the  rental  value  of  the  premises  uninjured  by  the  flowage  and 
the  rental  value  as  they  were?  Would  that  give  him  compensation 
for  his  damages?  Would  he  not  be  entitled  to  recover  the  value  of 
the  crop  standing  upon  the  ground  ?  It  seems  to  us  clear  that  he  would 
be  entitled  to  recover  that  amount.  In  this  case  the  plaintiff,  a  farmer, 
testified  to  the  number  of  tons  of  hay  injured  or  wholly  destroyed 
each  year  by  the  flowage,  and  the  actual  value  of  the  hay  standing 
upon  the  ground.  It  is  said  that  this  was  resorting  to  a  conjectural 
method  of  estimating  the  damages.  But  it  would  seem  to  be  the  only 
way  to  arrive  at  the  value  of  the  hay  destroyed.  If  the  estimate  of  the 
witness  was  extravagant,  his  testimony  could  be  and  in  fact  was  con- 
troverted by  that  on  the  other  side.  But  that  the  value  of  the  crops, 
and  not  the  rental  value  of  the  land,  was  the  true  rule  of  damages, 
is  shown  by  Williams  v.  Currie,  1  Man.,  G.  &  S.  841,  Benjamin  v. 
Benjamin,  15  Conn.  347,  39  Am.  Dec.  384,  and  Seamans  v.  Smith, 
46  Barb.  (N.  Y.)  320;  to  which  we  were  referred  on  the  argument. 
The  case  of  Williams  v.  Currie  was  an  action  of  trespass  by  a  tenant 
against  the  landlord  for  damages  to  the  tenant's  crops,  which  hacf 
been  caused  by  the  landlord's  selling,  felling  and  removing  timber 

«2  Part  of  tlie  opinion  is  omitted. 


510  DAMAGES  IN  CERTAIN  SPECIFIC  ACTIONS.  (Part    6 

without  applying  for  leave  to  enter.  The  jury  assessed  the  damages 
at  £300.,  and  the  court  refused  to  interfere,  although  the  new  value 
of  the  entire  crops  did  not  exceed  i200.  Nor  do  we  think  there  is  any- 
thing in  Chase  v.  N.  Y.  Central  R.  R.  Co.,  24  Barb.  (N.  Y.)  275, 
Easterbrook  v.  Erie  Railway  Co.,  51  Barb.  (N.  Y.)  94,  and  Francis 
V.  Schoellkopf,  53  N.  Y.  152,  in  conflict  with  this  rule.  Those  were 
actions  for  injuries  to  real  estate  caused  by  the  wrongful  acts  of  the 
defendants.  The  plaintiffs  were  permitted  to  recover  compensation 
for  the  injury;  and  in  the  latter  case,  which  was  for  a  nuisance,  the 
court  decided  that  the  proper  measure  of  damages  was  the  difference 
in  the  rental  value  free  from  the  effects  of  the  nuisance  and  subject 
to  it.     *     *     *  23 


II.  Personalty. 
(A)  Conversion  and  Injury. 

REID  V.  FAIRBANKS. 
(Court  of  Common  Pleas,  1853.     13  C.  B.  692.) 

Russell,  at  Pictou,  in  Nova  Scotia,  built  a  ship  for  plaintiff  and  exe- 
cuted a  bill  of  sale  for  her  to  him  when  the  vessel  was  part  done. 
He  subsequently  altered  the  registry  of  the  vessel  and  sold  her,  still 
unfinished,  to  defendant,  who  took  possession  and  finished  the  vessel 
and  sent  her  on  a  voyage  to  Liverpool  with  cargo.  The  defendant's 
act  was  held  to  be  a  conversion. 

Sir  Fitzroy  Kelly,  for  the  plaintiffs.^*  *  *  *  With  respect  to 
the  damages — the  plaintiffs  claim  to  be  entitled  to  the  full  value  of  the 
ship ;  and,  further,  they  claim  to  be  entitled  to  the  full  amount  of 
freight  earned  on  the  voyage  from  Nova  Scotia  to  Liverpool.  [Jervis, 
C.  J. — Can  you  recover  the  value  of  the  freight  in  this  action?]  It 
is  laid  as  special  damage.  [Maule,  J. — The  damages  in  trover,  are, 
the  value  of  the  thing  converted.  The  fact  of  the  defendants'  having 
used  it  profitably  after  the  conversion,  gives  the  plaintiff,  I  apprehend, 
no  title  to  the  profits.]  If  the  defendants  had  not  been  guilty  of  the 
conversion,  the  plaintiffs  would  have  made  profit  by  the  use  of  the 
ship;  therefore,  the  proper  measure  of  damages,  is,  besides  the  value 
of  the  ship  at  the  time  of  the  conversion,  the  freight  she  would,  but 
for  the  defendants'  wrongful  act,  have  earned  for  the  plaintiffs.  [Jer- 
vis, C.  J.,  referred  to  Mercer  v.  Jones,  3  Campb.  477,  where  Lord  El- 
lenborough  ruled,  that,  in  trover  for  a  bill  of  exchange,  the  damages 

23  See,  also,  O.  &  G.  S.  &  R.  Co.  v.  Tabor,  13  Colo.  41,  21  Pac.  925,  5  L.  R. 
A.  23(3,  10  Am.  St.  Rep.  185  (1889) ;  Georgia  R.  R.  &  B.  Co.  v.  Berry,  78  Ga. 
744,  4  S.  E.  10  (1887). 

24  Part  of  the  arguments  of  counsel  are  omitted  as  here  indicated,  and  the 
statement  of  facts  is  rewritten. 


Cil.  1)  IN    TORT    ACTIONS    AFFECTING    PROPERTY.  511 

were  to  be  calculated  according  to  the  amount  of  the  principal  and 
interest  due  upon  the  bill  at  the  time  of  the  conversion;  and  to  Davis 
V.  Oswell,  7  C.  &  P.  (32  E.  C.  L.  R.)  804,  where,  in  trover  for  a  horse, 
with  an  averment  of  special  damage,  that  the  plaintiff  was  put  to  ex- 
pense in  hiring  other  horses,  Parke,  B.,  intimated  an  opinion  that  the 
plaintiff  was  entitled  to  recover  the  value  of  the  horse  at  the  time  of 
the  conversion,  and  the  expense  he  had  been  put  to  for  hire  of  other 
horses,  deducting  from  that  amount  the  sum  he  would  have  paid  for 
the  keep  of  his  own  horse  during  the  time.  INIaulE,  J. — What  the 
plaintiffs  claim  here,  is,  something  beyond  that.]  This  is  an  action  on 
the  case  for  a  wrong  done.  On  what  principle  can  the  court  hold  that 
all  the  damages  sustained  by  the  plaintiffs  are  not  recoverable?  The 
plaintiffs  have  lost  the  use  of  their  ship  on  the  voyage  home.  [Maule, 
J. — Suppose  the  action  had  been  brought  immediately  upon  the  conver- 
sion of  the  ship,  the  damages,  you  must  concede,  would  merely  have 
been  the  value  of  the  ship  at  that  time.  Can  you  contend  that  the  dam- 
ages increase  after  the  accrual  of  the  cause  of  action?]  There  can 
be  no  valid  reason  why  they  should  not :  the  whole  cause  of  action  is 
not  the  conversion;  but  the  conversion  plus  the  special  damage.  [Jer- 
vis,  C.  J. — If  the  conversion  had  taken  place  at  Liverpool,  the  point 
would  have  been  presented  more  favourably  for  the  plaintiff's.  The 
demand  and  refusal,  however,  are  only  evidence  of  a  conversion ;  and 
here  there  was  proof  of  an  actual  conversion  by  the  alteration  of  the 
registry  at  Nova  Scotia.  Maule,  J. — The  value  of  the  ship  is  £3000., 
because  she  is  capable  of  earning  money  by  carrying  goods  or  freight. 
When  you  pay  a  man  for  his  ship,  you  pay  him  for  what  it  can  or  may 
or  shall  do  to  produce  profit.]  *  *  *  'phe  amount  of  damages  de- 
pends upon  the  state  of  the  ship  at  the  time  of  conversion.  The  plain- 
tiffs are  not  bound  to  adopt  the  earliest  conversion.  The  defendants 
were  guilty  of  a  conversion  when  they  took  the  vessel  and  put  the  stores 
on  board.  If  the  defendants  laid  out  money  upon  the  plaintiffs'  ship, 
they  did  so  of  their  own  wrong.  [Jervis,  C.  J. — In  Martin  v.  Porter, 
5  M.  &  W.  351,  where  the  defendant,  in  working  his  coal  mine,  broke 
through  the  barrier,  and  worked  the  coal  under  the  land  adjoining, 
belonging  to  the  plaintiff,  and  raised  it  for  the  purpose  of  sale — it 
was  held,  in  trespass  for  such  working,  that  the  proper  estimate  of 
damages,  was,  the  value  of  the  coal  when  gotten,  without  deducting 
the  expense  of  getting  it:  and  Lord  Abinger  said:  "If  the  plaintiff 
had  demanded  the  coals  from  the  defendant,  no  lien  could  have  been 
set  up  in  respect  of  the  expense  of  getting  them.  How,  then,  can  he 
claim  to  deduct  it?  He  cannot  set  up  his  own  wrong."]  That  is  a  dis- 
tinct authority.  So,  in  Greening  v.  Wilkinson,  1  C.  &  P.  625,  it  was 
held,  that,  in  trover,  the  jury  are  not  limited  to  find  as  damages  the 
mere  value  of  the  property  at  the  time  of  the  conversion,  but  they  may 
find  as  damages  the  value  at  a  subsequent  time,  in  their  discretion : 
and  Abbott,  C.  J.,  said:  "The  plaintiff  might  have  had  a  good  opportu- 
nity of  selling  the  goods,  if  they  had  not  been  detained."    [Maule,  J. — 


512  DAMAGES  IN  CERTAIN  SPECIFIC  ACTIONS.  (Part    6 

That  is  hardly  consistent  with  the  modern  doctrine.]  If  a  man  takes 
my  ship  in  an  unfinished  state,  and,  without  my  knowledge,  lays  out 
money  upon  her,  may  I  not  demand  my  ship  with  all  its  improvements  ? 
[Cresswell,  J. — "Without  your  knowledge!"  Here,  the  money  was 
not  expended  upon  the  ship  until  after  the  plaintiffs  had  notice  that  the 
defendants  asserted  a  claim  to  her.  This  appears  from  the  defendants' 
letter  to  the  plaintiffs  of  the  1st  of  June,  1849.]  It  is  immaterial 
whether  the  money  is  expended  by  the  wrongdoer  with  or  without  the 
knowledge  of  the  true  owner  of  the  property.  [Maule,  J. — It  may  be 
that  the  wrongdoer,  who  acquires  no  property  in  the  thing  he  converts, 
acquires  no  Hen  for  what  he  expends  upon  it;  and  the  owner  may 
bring  detinue  or  trover.  But  it  does  not  follow,  that,  if  the  owner 
brings  trover,  he  is  to  recover  the  full  value  of  the  thing  in  its  im- 
proved state.  The  proper  measure  of  damages,  as  it  seems  to  me,  is, 
the  amount  of  the  pecuniary  loss  the  plaintiffs  have  sustained  by  the 
conversion  of  their  ship.  Jervis,  C.  J. — That,  is  what  she  was  really 
worth  when  the  defendants  converted  her:  the  plaintiffs  have  lost  the 
value  of  the  vessel  before  the  defendants  began  to  lay  out  money  upon 
her.]  It  would  be  competent  to  a  jury  to  give  the  value  at  the  one  time 
or  the  other.  [Maule,  J. — It  never  could  have  been  intended  here 
that  Mr.  Richards  should  have  power  to  exercise  that  sort  of  discretion 
which  Lord  Tenterden,  in  Greening  v.  Wilkinson,  speaks  of  being  ex- 
ercised by  the  jury.]  There  is  no  warrant  for  saying  that  the  plain- 
tiffs' right  is  limited  to  the  value  of  the  ship  only  after  deducting  what 
the  defendants  have  wrongfully  laid  out  in  completing  her.  [Jervis, 
C.  J. — In  strictness  that  may  be  so:  but  no  jury  would  give  such  dam- 
ages :  they  would  always  give  what  they  conceived  the  plaintiff  justly 
entitled  to.]  But  for  the  defendants'  wrongful  act,  Russell  would 
have  completed  the  vessel,  and  the  plaintiffs  would  have  earned  freight. 
Jervis,  C.  J.^^  We  all  think  that  the  proper  principle  on  which  to 
estimate  the  damages  in  this  case,  will  be,  the  value  of  the  ship,  and  all 
her  stores,  etc.,  on  the  29th  of  March,  1849,  the  time  when  Russell 
ceased  to  work  upon  her  on  the  plaintiffs'  account,  and  when  the  de- 
fendants took  possession  of  her;  and  that,  as  a  mode  of  ascertaining 
such  value,  the  arbitrator  should  consider  what  would  have  been  the 
value  of  the  ship  at  Pictou,  if  she  had  been  completed  by  Russell  ac- 
cording to  his  contract  with  the  plaintiffs,  and  deduct  therefrom  the 
money  that  would  necessarily  have  been  laid  out  by  Russell  after  the 
29th  of  March,  1849,  in  order  to  complete  her  according  to  the  con- 
tract.     *      *      *  26 

25  Only  part  of  the  opinion  of  Jervis,  C.  J.,  is  here  given;  the  opinions  of 
other  judges  being  omitted. 

2  6  And  see  Chinery  v.  Viall,  ante,  p.  325. 

See  Archer  v.  Williams,  2  Car.  &  K.  26  (1846).  Where  goods  are  surrendered 
by  a  bailee  to  a  third  party  under  the  owner's  orders,  but  earlier  than  as 
directed,  this  is  a  conversion,  but  only  nominal  damages  are  recoverable. 
Hiort  v.  L.  &  N.  W.  Ry.  Co.,  L.  R.  4  Exch.  Div.  188  (1879). 


Ch.  1)  IN    TORT    ACTIONS    AFFECTING    PROPERTY.  513 

KURD  V.   HUBBELL. 
(Supreme  Court  of  Errors  of  Connecticut,  1S57.     26  Conn.  389.) 

Trover.  Upon  the  trial  the  plaintiff  claimed  to  have  proved  that  the 
property  had  been  left  by  him  in  the  hands  of  one  Hector,  upon  an 
agreement  that  it  should  become  the  property  of  Hector  upon  the 
payment  by  him  of  a  certain  note,  and  not  before;  that  Hector  after- 
wards, before  payment  of  the  note,  and  while  the  property  belonged  to 
the  plaintiff,  transferred  it  to  the  defendant,  who  converted  it  to  his 
own  use ;  and  that  the  defendant  took  the  property  with  knowledge  of 
the  plaintiff's  rights,  and  for  the  purpose  of  enabling  Hector  to  de- 
fraud the  plaintiff.  Thereupon,  in  accordance  with  the  request  of  the 
plaintiff,  the  court  instructed  the  jury  that  if  they  should  find  for  the 
plaintiff,  and  should  find  the  facts  in  relation  to  the  manner  and  pur- 
pose of  the  taking  of  the  property  by  the  defendant  to  be  as  claimed 
by  the  plaintiff,  and  should  find  that  the  plaintiff,  by  the  willful  mis- 
conduct of  the  defendant,  had  been  compelled  to  incur  the  trouble  and 
expense  of  this  litigation,  they  might  on  that  account  give  such  fur- 
ther damages,  in  addition  to  the  value  of  the  property  and  interest,  as 
they  might  deem  reasonable.  The  jury  returned  a  verdict  for  the 
plaintiff,  for  a  sum  exceeding  the  value  of  the  property  and  interest; 
and  thereupon  the  defendant  moved  for  a  new  trial  for  error  in  the 
charge  of  the  court. 

Ellsworth,  J.^^  The  question  presented  in  this  case  is,  what  is 
the  true  rule  of  damages  in  the  action  of  trover.  We  have  so  recent- 
ly presented  our  views  on  this  subject,  and  on  the  subject  of  damages 
in  all  actions  of  tort,  in  the  case  of  St.  Peter's  Church  of  Milford  v. 
Beach,  26  Conn.  355,  that  we  need  not  dwell  on  the  topic  farther.  We 
there  held,  that  in  such  an  action  as  this,  the  value  of  the  property  and 
interest  is  the  rule  of  damages,  and  that  the  expenses  of  litigation,  not 
being  the  natural  and  proximate  consequences  of  the  conversion,  are 
not  to  be  recovered. 

Besides,  we  have  always  understood  that  the  rule  of  damages  in  this 
kind  of  action,  is  the  value  of  the  property  at  the  time  of  conversion, 
and  interest.  It  has  been  so  from  the  first,  in  our  courts,  and  in  the 
English  courts  with  a  slight  qualification  in  the  case  of  sales  of  chat- 
tels where  the  price  is  paid  in  advance,  and  in  that  of  contracts  for 
the  delivery  of  stock.  The  rule  is  the  same  throughout  this  coun- 
try. *  *  *  As  i\^Q  court  laid  down  a  different  rule  on  the  trial  of 
this  case  before  the  jury,  we  advise  a  new  trial. 

ST  Part  of  the  opinion  is  omitted. 
Gilb.Dam.— 33 


514  DAMAGES  IN  CERTAIN  SPECIFIC  ACTIONS.  (Part   6 

WEHLE  V.  HAVILAND  et  al. 
(Court  of  Appeals  of  New  York,  1877.     69  N.  Y.  448.) 

This  was  an  action  of  trespass  for  entering  upon  plaintiff's  prem- 
ises and  unlawfully  taking  and  carrying  away  her  stock  of  goods.  The 
goods  were  taken  under  and  by  virtue  of  several  attachments  in  favor 
of  defendants  and  others,  which  attachments  were  thereafter  set  aside 
and  vacated  as  irregularly  issued. 

Allen,  J.^®  *  *  *  'p^g  learned  judge,  supposing  that  he  was 
following  the  Commission  of  Appeals  in  Wehle  v.  Butler,  not  then  re- 
ported, but  since  reported  in  61  N.  Y.  245,  instructed  the  jury  that  the 
plaintiff  was  entitled  to  recover  the  retail  value  of  the  goods  taken, 
and  again  that  the  only  question  for  them  was  what  was  the  fair  re- 
tail value  of  the  goods,  and  the  interest  on  that  amount  from  the  time 
of  the  seizure.  The  court  withdrew  from  the  consideration  of  the  jury 
the  question  of  malice,  and  the  claim  of  the  plaintiff  to  recover  ex- 
emplary damages,  or  damages  in  excess  of  the  value  of  the  goods  and 
interest  thereon.  The  most  that  was  decided  by  the  Commission  of 
Appeals  in  Wehle  v.  Butler,  and  that  does  not  seem  from  the  reported 
opinion  to  have  been  considered  by  that  learned  court,  was  that  in  ac- 
tions of  trespass  de  bonis  asportatis,  or  trover,  evidence  of  the  retail 
value  of  the  goods  might  be  given  as  one  of  the  elements  for  deter- 
mining their  true  or  market  value  at  the  time  and  place  of  the  asporta- 
tion or  conversion.  Whether  that  was  the  true  measure  of  damages 
was  not  before  the  court,  or  considered  by  them.  This  is  apparent  by 
the  report  of  the  same  case  in  35  N.  Y.  Super.  Ct.  1.  The  Superior 
Court  of  New  York  City  declined  to  consider  the  question,  because  not 
presented  by  any  ruling  or  decision  of  the  trial  court  or  any  distinct 
exception.  There  is  no  controversy  as  to  the  measure  of  damages  in 
actions  of  this  character.  It  is  the  actual  value  of  the  property  at  the 
time  of  the  taking  with  interest  thereon  from  the  time.  Stevens  v. 
Low,  2  Hill,  132 ;   Kennedy  v.  Strong,  14  Johns.  128. 

In  some  cases  where  the  value  of  the  property  is  fluctuating  the 
value  may  be  fixed  at  the  time  the  owner  is  deprived  of  his  property,  or 
within  such  reasonable  time  thereafter  as  he  might  have  replaced  it. 
Romaine  v.  Van  Allen,  26  N.  Y.  309.  There  are  cases  in  which  the 
highest  price  up  to  the  time  of  the  trial,  has  been  allowed.  But  these 
are  exceptional  cases  and  do  not  apply  when  the  value  of  the  property 
is  not  subject  to  fluctuations  and  the  value  at  the  time  of  the  tortious 
taking  and  interest  will  indemnify  the  owner.  The  plaintiff  was  en- 
titled to  recover  so  much  as  would  repair  the  injury  sustained  by  the 
wrong"  doing  of  the  defendants,  and  that  was  the  money  value  of  the 
goods  at  the  time  and  interest  thereon.  The  money  value  is  the  price 
at  which  they  could  be  replaced  for  money  in  the  market,  and  hence  the 
inquiry  is  as  to  the  market  value  of  the  goods  when  they  have  a  market 

28  Part  of  the  opinion  is  omitted. 


Ch.  1)         IN  TORT  ACTIONS  AFFECTING  PROPERTY.  515 

value.  Dana  v.  Fiedler,  12  N.  Y.  41,  62  Am.  Dec.  130.  The  sum  at 
which  the  plaintiff  could  have  replaced  the  goods  in  market  would  have 
indemnified  her  for  the  loss  sustained,  and  the  interest  upon  that  sum 
would  have  given  her  the  legal  profit  to  which  she  was  entitled,  the  fix- 
ed legal  rate  of  interest  taking  the  place  of  the  uncertain  and  indefinite 
profits  which  the  plaintiffs  might  have  made  either  from  the  posses- 
sion of  the  goods  or  their  equivalent  in  money. 

It  is  well  settled  that  in  actions  for  the  conversion  of  goods,  or  for 
the  nondelivery  of  goods  or  chattels  upon  contract,  unearned  and  spec- 
ulative profits  Will  not  be  included  as  a  part  of  the  damages  to  be  recov- 
ered. Blanchard  v.  Ely,  21  Wend.  342,  34  Am.  Dec.  250;  Boyd  v. 
Brown,  17  Pick.  (Mass.)  453;  Smith  v.  Condry,  1  How.  28,  11  L. 
Ed.  35;  Griffin  v.  Colver,  16  N.  Y.  489,  69  Am.  Dec.  718. 

The  retail  value  or  the  price  at  which  goods  are  sold  at  retail  m- 
cludes  the  expected  and  contingent  profits,  the  earning  of  which  in- 
volves labor,  loss  of  time  and  expenses,  supposes  no  damages  to  or  de- 
preciation in  the  value  of  the  goods,  and  is  dependent  upon  the  con- 
tingency of  finding  purchasers  for  cash,  and  not  upon  credit,  within  a 
reasonable  time,  the  sale  of  the  entire  stock  without  the  loss  by  unsal- 
able remnants,  and  the  closing  out  of  a  stock  of  goods  as  none  ever 
was,  or  ever  will  be  closed  out,  by  sales  at  retail  at  full  prices. 

By  the  allowance  of  these  unearned  and  uncertain  profits  and  also 
the  allowance  of  interest  from  the  time  of  the  conversion  the  plaintiff 
recovers  the  profits  which  she  had  hoped  to  make  in  the  future,  and  in- 
terest upon  the  profits,  as  well  as  upon  her  investment.  The  plaintiff 
was  entitled  to  compensation  and  that  consisted  of  the  market  value 
of  the  goods,  their  cost,  or  what  they  would  have  cost  in  the  rnarket 
and  interest  thereon  and  nothing  more.  The  retail  profit  was  riot  in- 
cluded in  the  compensation  to  which  she  was  entitled.     *     *     * 


LAZARUS  V.  ELY. 

(Supreme  Court  of  Errors  of  Connecticut,  1ST8.     45  Conn.  501.) 
See  ante,  p.  399,  for  a  report  of  the  case. 


GLASPY  V.  CABOT. 
(Supreme  Judicial  Court  of  Massachusetts,  1883.     135  Mass.  435.) 
Sec  ante,  p.  342,  for  a  report  of  the  case.-^ 

20  See.  also,  Ingram  v.  Rankin,  ante,  p.  372;  Beede  v.  Lamfroy,  ante.  p. 
378  •  Griggs  v  Day.  ante,  p.  352,  note ;  Batemau  v.  Ryder,  ante,  p.  34b ;  Scott  v. 
Rogers  ante,  p.  360 ;  Baker  v.  Drake,  ante,  p.  3G1 ;  Wright  v.  Bank  of  the 
Metroi>olis,  ante,  p.  364;  Diniock  v.  United  States  Bank,  ante,  p.  3G8;  Eaton 
V  Laiiglev.  ante,  p.  381  ;  White  v.  Yawkey,  ante.  p.  387 ;  Gaskins  v.  Davis, 
ante.  p.  3S0;  Bolles  Woodenware  Co.  v.  United  States,  ante,  p.  392;  Carpen- 
ter V.  American  Building  &  Loan  Association,  ante,  p.  399,  note;  Perrotl  v. 
Shejirer,  ante,  p.  403. 


516  DAMAGES  IN  CERTAIN  SPECIFIC  ACTIONS.  (Part    6 

GILLETT  V.  WESTERN  R.  CORPORATION. 

(Supreme  Judicial  Court  of  Massachusetts,  1864.     8  Allen,  560.) 

Action  of  tort  for  the  injury  of  plaintiff's  horses,  occasioned  by  the 
negligence  of  the  defendant.  Upon  the  question  of  damages,  the 
judge  instructed  the  jury  that  the  plaintiffs  were  entitled  to  recover 
the  diminution  of  the  market  value  of  the  horses,  occasioned  by  the 
injury,  and,  in  addition,  such  sums  of  money  as  the  plaintiffs  had  paid 
out  in  reasonable  attempts  to  cure  them,  with  a  reasonable  compen- 
sation for  their  own  services  in  attempting  to  cure  them,  and  a  rea- 
sonable sum  as  compensation  for  the  loss  of  the  use  of  their  horses 
while  under  such  treatment.^" 

BiGELOW,  C.  J.®^  *  *  *  j^.  (jQgg  j^Q^.  appear  that  the  rule  of  dam- 
ages was  incorrectly  laid  down  at  the  trial.  As  we  understand  the 
instructions,  the  jury  were  told  that  the  plaintiffs  were  entitled  to  re- 
cover a  sum  equal  to  the  diminution  of  the  market  value  of  the  horses, 
caused  by  the  injuries;  to  be  ascertained,  not  by  their  condition  im- 
mediately after  the  occurrence  of  the  accident,  but  by  that  in  which 
they  were  shown  to  be  at  or  about  the  time  of  the  trial,  and  after  they 
had  been  partially  restored  to  health  and  soundness  by  restorative 
means  which  the  plaintiffs  had  reasonably  used  in  the  relief  and  cure 
of  the  injuries  which  they  had  received.  Thus  construed,  the  in- 
structions were  clearly  right.  The  plaintiffs  were  entitled  to  recover 
their  reasonable  expenses  incurred  in  curing  the  horses,  because  there- 
by they  had  diminished  the  extent  of  the  injuries,  and  the  amount  of 
damages  which  the  defendants  would  otherwise  have  been  liable  to 
pay.     *     *     * 


(B)  Detention, 
ALLEN  v.  FOX. 

(Court  of  Appeals  of  New  York,  1873.     51  N.  T.  562.  10  Am.  Rep.  641.) 

This  action  was  brought  to  recover  the  possession  of  a  horse.  The 
horse  had  been  taken  in  the  action,  and  delivered  to  the  plaintiff  and 
retained  by  him  to  the  time  of  the  trial.  There  was  conflicting  evi- 
dence as  to  the  title  of  the  horse,  but  the  jury  found  the  title  to  be 
in  the  defendant,  and  assessed  its  value  at  $175,  and  damages  for  its 
detention  by  the  plaintiff  at  seventy-five  dollars.  The  defendant,  for 
the  purpose  of  proving  his  damages  for  the  detention,  gave  evidence 
of  the  value  of  the  use  of  the  horse.  The  plaintiff  objected  to  this 
evidence,  claiming  that  the  value  of  the  use  was  not  the  proper  meas- 
ure or  rule  of  damage. ^- 

3  0  This  statement  is  abridged  from  that  of  the  official  report. 

31  Part  of  the  opinion  is  omitted. 

32  This  statement  is  abridged  from  that  of  the  official  report 


Ch.  1)  IN    TORT    ACTIONS   AFFECTING    PROPERTY.  517 

Earl,  C.^^  ♦  *  *  Jj^  actions  of  trover,  in  cases  where  there  has 
been  no  increase  in  the  vahie  of  the  property  converted  intermediate 
the  conversion  and  the  time  of  the  trial,  the  measure  of  damages  is 
the  value  at  the  time  of  the  conversion,  and  interest  thereon  to  the 
time  of  the  trial,  and  it  would  have  to  be  a  very  special  case  that  would 
authorize  greater  damages.  The  claim  here,  is  that  the  same  rule  ap- 
plies in  an  action  of  replevin,  and  I  shall  endeavor  to  show  that  it  does 
not  apply  in  all  cases,  and  that  this  case  is  one  of  a  class  to  which  it 
cannot  be  applied. 

The  very  nature  of  the  two  kinds  of  action  shows  that  the  same 
rule  of  damages  should  not  be  inflexibly  applied  in  each. 

In  the  action  of  trover,  the  plaintiff  does  not  seek  to  recover  his 
property,  but  its  value  as  a  substitute  for  the  property.  He  abandons 
the  property  to  the  defendant,  preferring  to  pursue  him  for  its  value. 
He  makes  a  kind  of  forced  sale  of  it,  -without  any  expectation  or  in- 
tention of  retaking  it.  Hence,  in  such  cases,  lie  can  be  expected  at 
once  to  go  into  the  market  and  supply  himself  with  the  same  property 
at  its  market  value  if  he  desires  it.  But  in  the  action  of  replevin,  the 
plaintiff  seeks  to  recover  the  property,  and  is  in  all  stages  of  the  case 
to  final  judgment  in  pursuit  of  that,  and  not  its  value.  And  during 
the  whole  time  the  defendant  may  have  the  possession  and  the  use 
(if  it  can  be  used)  of  his  property.  At  the  termination  of  the  suit  it 
is  not  optional  with  him  to  take  the  property  or  its  value.  If  the  de- 
fendant has  the  property,  and  will  permit  him  to  take  it,  he  is  obliged 
to  take  it.  Code,  §  277 ;  Dwight  v.  Enos,  9  N.  Y.  470 ;  Fitzhugh  v. 
Wiman,  Id.  599.  Hence  the  plaintiff  cannot  always  be  expected  or 
required,  in  such  cases,  to  go  into  the  market  and  supply  himself  with 
the  same  kind  of  property  at  its  market  value.  Suppose  the  contro- 
versy be  about  a  canal  boat  or  a  carriage,  or  an  expensive  machine. 
If  the  plaintiff  should  go  into  market  and  buy  another,  at  the  end  of 
the  litigation,  in  case  of  success,  he  would  have  on  hand  duplicates  of 
the  article,  and  would  thus  be  subjected  to  further  loss  and  inconven- 
ience. These  observations  are  made  simply  to  show  that  there  is 
nothing  in  the  nature  of  the  two  actions  requiring  the  application  of  the 
same  rule  of  damages. 

In  the  action  of  replevin,  under  the  Code,  the  jury  are  required  to 
assess  the  value  of  the  property,  and  damages  for  its  detention.  The 
value  here  intended  is  the  value  at  the  time  of  the  trial.  In  case  the 
prevailing  party  can  obtain  a  delivery  of  the  property,  he  must  take 
it  as  it  then  is;  if  he  cannot  obtain  such  delivery,  then  the  value  is 
intended  as  a  substitute  and  precise  equivalent  of  the  property.  The 
damages  for  detention  are  the  same,  whether  the  party  recover  the 
property  or  its  value.  Now,  suppose,  the  property  has  been  badly  de- 
preciated, intermediate  the  wrongful  taking  and  the  trial,  still  the 
prevailing  party  is  obliged  to  take  it  if  he  can  obtain  it,  and  he  is 

83  Part  of  the  opinion  is  omitted. 


518  DAMAGES  IN  CERTAIN  SPECIFIC  ACTIONS.  (Part    6 

indemnified  for  the  depreciation  by  the  damages  assessed  to  him.  But 
he  recovers  the  same  damages  if  he  cannot  obtain  the  property  and  is 
obliged  to  take  its  value,  and  then  if  the  value  has  been  assessed  as 
it  existed  at  the  time  of  the  taking,  before  the  depreciation,  it  is  clear 
that  he  gets  more  than  an  indemnity.  Hence  there  is  no  way  of  ad- 
ministering this  law,  except  by  holding  that  the  value  required  to  be 
assessed  by  the  jury  means  the  value  at  the  time  of  the  trial.  Young 
V.  Willet,  8  Bosw.  486 ;   B'-ewster  v.  Silliman.  38  N.  Y.  423,  429. 

With  this  rule  in  view,  what  should  be  the  measure  of  damages 
for  the  detention?  In  many  cases  interest  on  the  value  from  the 
time  of  the  wrongful  taking  would  be  a  proper  measure.  It  would 
be  generally  in  all  cases  where  the  property  detained  was  merchandise 
kept  for  sale,  grain  and  all  other  articles  of  property  useful  only  for 
sale  or  consumption.  In  such  cases,  if  the  owner  recover  the  interest 
on  the  value  of  his  property  from  the  time  he  was  deprived  of  it,  he 
will  generally  have  a  complete  indemnity  unless  the  property  has  de- 
preciated in  value,  in  which  case  the  depreciation  must  be  added  to  the 
interest  on  the  value,  taken  as  it  was  before  the  depreciation,  and  the 
two  items  will  furnish  the  amount  of  the  damage.  This  damage,  to- 
gether with  the  property  or  its  value  at  the  time  of  the  trial,  will  give 
the  owner  as  complete  indemnity  as  the  law  is  generally  able  to  give 
any  person,  seeking  redress  for  a  wrong.  But  the  same  measure  of 
damages  would  not  generally  furnish  the  owner  an  indemnity  in  case 
the  property  claimed  had  a  value  for  use,  or,  in  other  words,  a  usable 
value,  such  as  horses,  cows,  carriages  and  boats.  In  such  case  the 
direct  damage  which  the  owner  suffers  is  the  loss  of  the  use,  and  the 
value  of  the  use  should  be  the  measure  of  damage. 

This  case  illustrates  the  injustice  of  the  rule  contended  for  by  the 
plaintiff  as  well  as  any.  The  jury  found  the  value  of  the  horse  to  be 
$175  and  the  value  of  the  use  to  be  $75  for  one  year  and  three  months. 
For  the  same  period  the  interest  would  have  been  $15.31,  and  if  that 
had  been  taken  as  the  measure  of  damages,  the  owner  would  have 
lost  about  $60  and  the  wrongdoer  would  have  made  that  much  profit 
out  of  his  wrong.  A  rule  of  damage  which  works  out  such  a  result 
cannot  have  a  basis  of  principle  or  justice  to  stand  upon.     *     *     * 


REDMOND  V.  AMERICAN   ^IFG.   CO. 

(Court  of  Appeals  of  New  York,  1890.     121  N.  Y.  415,  24  N.  E.  924.) 

The  defendant  company  agreed  to  operate  fourteen  patented  ma- 
chines of  plaintiff,  who  was  an  inventor,  for  a  certain  period  of  time, 
and  at  the  expiration  thereof  either  to  purchase  them  at  an  agreed  price 
or  to  return  them  to  plaintiff.  The  machines  were  an  untried  device 
to  fasten  rivets  in  the  joints  of  umbrella  ribs.  This  action  was  brought 
to  recover  the  machines,  or  their  value,  with  damages  for  their  de- 
tention. 


Ch.  1)  IN    TORT    ACTIONS    AFFECTING    PROPERTT.  519 

O'Brien^  J.'*  *  *  *  It  is  urged  upon  this  appeal,  on  the  au- 
thority of  Allen  V.  Fox,  51  N.  Y.  562,  10  Am.  Rep.  (J41,  that  he  was  en- 
titled to  recover  as  damages  for  the  unlawful  detention  of  the  proper- 
ty such  sum  as  he  could  prove  to  be  the  value  of  the  use  of  the  prop- 
erty during  the  period  that  it  was  wrongfully  detained.  That  was  an 
action  to  recover  the  possession  of  a  horse;  and  what  is  there  called 
the  "usable  value  of  the  horse"  was  held  to  be  a  proper  measure  of 
damages  for  its  detention.  The  learned  judge  who  gave  the  opinion 
in  the  case  admits  that  the  interest  on  the  value  of  the  property  at 
the  time  of  the  trial  is  generally  the  proper  measure  of  damages  for  its 
wrongful  detention,  when  it  consists  of  merchandise  kept  for  sale,  and 
all  other  articles  of  property  valuable  only  for  sale  or  consumption. 
In  actions  to  recover  the  possession  of  specific  personal  property  many 
cases,  no  doubt,  may  and  do  arise  where  the  interest  would  not  fur- 
nish to  the  owner  of  the  property  a  just  or  sufficient  indemnity  for  his 
loss ;  but  such  cases  are  special  and  exceptional,  and  it  is  scarcely  pos- 
sible to  group  them  under  any  general  rule  or  principle.  There  is  a 
manifest  difference  between  the  case  of  the  wrongful  detention  of  a 
horse  or  other  property  which  is  in  constant  and  daily  use,  and  the  us- 
able value  of  which  is  well  known  and  readily  ascertained,  and  proper- 
ty of  the  character  of  that  which  was  the  subject  of  controversy  in  this 
case.  Here  the  property  was  manufactured  and  delivered  to  the  de- 
fendant for  the  purpose  of  sale,  like  any  other  article  of  merchandise. 
It  is  not  claimed,  and  it  is  not  at  all  likely,  that  the  plaintiff  could  have 
put  the  machines  to  any  other  use  while  the  defendant  detained  them 
after  the  demand.  When  machinery  in  operation  is  taken  from  the 
owner  of  a  factory,  who  requires  it  for  immediate,  constant,  and  daily 
use,  and  detained  by  the  wrong-doer,  such  an  act  would  probably  in- 
flict upon  the  owner  damages  which  could  not  be  compensated  by  the 
interest  on  its  value  for  the  period  of  the  wrongful  detention.  But 
when,  as  in  this  case,  the  maker  of  a  patented  machine  or  article,  de- 
siring to  introduce  it  into  general  use,  delivers  it  with  a  view  to  a  sale, 
and  afterwards  becomes  entitled  to  have  the  same  returned  to  him  by 
reason  of  the  failure  of  the  party  to  whom  it  is  delivered  on  trial  to 
accept  it,  or  comply  with  the  terms  and  conditions  upon  which  it  was 
delivered,  the  interest  on  its  price  or  value  from  the  time  of  the  wrong- 
ful detention  to  the  trial  furnishes  a  just  indemnity  for  the  wrong,  and 
the  proper  rule  of  damages,  in  such  cases.     *     *     * 


MITCHELL  v.  BURCH. 

(Supreme  Court  of  Indiana,  1S71.     36  lud.  529.) 
See  ante,  p.  425,  for  a  report  of  the  case.^"* 

s*  Part  of  the  opinion  is  omitted,  and  the  statement  of  facts  is  rewritten. 
3&  S<'e,  also,  Clement  v.  Duffy,  ante,  p.  374,  note;  Griffin  v.  Colver,  ante,  p. 
215;  Usidley  v.  i<rtxendale.  ante.  p.  189;  Chappoil  v.  Ellis,  ante,  p.  473. 


520  DAMAGES  IN  CERTAIN   SPECIFIC  ACTIONS.  (Part    6 

SECTION   3.— FRAUD  AND  DECEIT. 


BRIGGS  V.  BRUSHABER. 

(Supreme  Court  of  Michigan,  1880.    43  Micli.  330,  5  N.  W.  383,  38  Am.  Rep. 

187.) 

CooLEY,  J.^^  Plaintiff  sued  defendant  for  fraud  in  inducing  her,  by 
false  representations,  to  make  a  loan  to  one  Ferchon,  secured  by  a 
mortgage  on  land  which  was  worth  much  less  than  the  sum  loaned  up- 
on it.  The  case  was  tried  by  jury,  and  special  findings  are  returned. 
The  sum  loaned  was  $450,  and  for  this  a  mortgage  for  $500  was  taken. 
The  mortgagor  was  irresponsible.  The  jury  found  that  the  fraud 
was  made  out  by  the  evidence,  and  that  plaintiff  was  entitled  to  recover. 
The  mortgage,  however,  had  never  been  foreclosed,  and  was  still  in 
the  hands  of  the  plaintiff  as  an  existing  security.  Under  these  circum- 
stances, although  the  jury  found  the  value  of  the  mortgaged  premises 
to  be  only  $250,  the  court  was  of  opinion  that  the  plaintiff  could  re- 
cover nominal  damages  only.  The  view  of  the  judge  seemed  to  be  that 
no  actual  damages  were  sustained  by  the  plaintiff,  or  would  be  until 
an  attempt  to  enforce  the  mortgage  had  been  made,  and  in  whole  or  in 
part  had  proved  unsuccessful.     *     *     * 

In  this  case  the  plaintiff  was  damnified  as  soon  as  the  loan  was  made. 
She  had  been  induced  to  part  with  her  money  for  something  of  much 
less  value  than  that  which  it  was  agreed  she  should  receive  for  it. 
The  mortgage  was  a  marketable  commodity,  and  she  lost  by  the  fraud 
itself  the  difference  between  the  market  value  of  that  which  she  re- 
ceived and  that  which  she  was  to  have  under  the  arrangement.  It  is 
true  this  could  not  be  definitely  fixed  by  the  evidence;  witnesses 
might  disagree  respecting  it;  the  market  value  of  lands  might  rise 
afterwards  to  an  extent  that  would  make  the  mortgage  available  to 
its  full  amount ;  but  there  is  nothing  unusual  in  contingencies  of  this 
sort  being  involved  in  litigation,  and  casting  uncertainty  upon  any  at- 
tempt to  do  justice. 

Had  the  plaintiff  been  defrauded  in  the  purchase  of  a  horse,  similar 
questions  might  arise;  the  plaintiff  might  gain  or  might  lose  by  the 
evidence  convincing  the  jury  that  the  horse  was  worth  less  or  more 
than  the  real  market  value,  and  an  unexpected  rise  in  horses  might  save 
him  from  any  loss  at  all.  But  controversies  of  the  sort  can  only  be  de- 
termined in  one  way:  the  jury  must  judge  of  the  extent  of  the  damage 
by  such  evidence  of  value  as  the  parties  may  be  able  to  produce,  and 
to  postpone  a  remedy  until  the  time  shall  arrive  when  all  possibility  of 
error  or  mistake  is  precluded,  would  be  grossly  unjust,  and,  in  many 

«6  Part  of  the  opinion  is  omitted. 


Ch.  1)  IN    FRAUD    AND    DECEIT.  521 

cases,  equivalent  to  a  denial  of  remedy.  The  latter  might  be  the  case 
here  if  the  mortgage  had  been  on  long  time.  We  think  the  court  err- 
ed in  limiting  the  recovery  to  nominal  damages.  The  plaintiff  was  en- 
titled to  recover  the  difference  between  the  $450  loaned  by  her,  and  the 
value  of  the  securities  which  she  received  therefor,  and  to  interest  upon 
this  sum  from  the  time  the  loan  was  made.     *     *     * 


STILES  v.  WHITE  et  al. 

(Supreme  Judicial  Court  of  Massachusetts,  1846.    11  Mete.  356.  45  Am.  Dec. 

214.) 

Trespass  upon  the  case  for  deceit  in  the  sale  of  a  horse.  The  de- 
fendants further  contended,  that  if  the  horse,  at  the  time  of  the  sale, 
was  fairly  worth  all  the  plaintiff  paid  for  him,  then  there  was  no  dam- 
age, and  the  action  would  not  lie.*^ 

Wilde,  J.'®  *  *  *  The  court  ruled  that  the  measure  of  dam- 
ages was  the  difference  between  the  actual  value  of  the  horse  sold,  and 
the  value  of  such  a  horse  as  that  was  represented  to  be  by  the  de- 
fendants. This  rule  of  damages  we  think  perfectly  correct.  It  was 
so  laid  down  by  Buller,  J.,  in  Towers  v.  Barrett,  1  T.  R.  136 ;  by 
Lord  Denman,  in  Clare  v.  Maynard,  7  Car.  &  P.  743 ;  and  so  it  was 
decided  in  Gary  v.  Gruman,  4  Hill  (N.  Y.)  625,  40  Am.  Dec.  299, 
and  in  other  cases  cited  for  the  plaintiff.  The  defendants'  counsel  ad- 
mitted that  this  was  the  well  established  rule  in  actions  on  the  con- 
tract of  warranty ;  and  surely  the  defendants  cannot  claim  a  more 
favorable  rule  of  damages,  on  the  ground  of  their  own  fraud.  The 
plaintiff  was  clearly  entitled  to  such  a  horse,  or  the  value  of  such  a 
horse,  as  that  sold  to  him  by  the  defendants  was  by  them  represented 
to  be.     *     *     * 


PEEK  V.  DERRY. 

(Supreme  Court  of  Judicature,  1SS7.     L.  R.  37  Ch.  Dlv.  .^41.) 

Plaintiff'  purchased  400  shares  of  stock  in  the  Plymouth,  Devenport 
&  District  Tramways  Company  for  wliich  he  paid  £4000.  The  action 
is  brought  for  damages  sustained  by  reason  of  reliance  on  untrue 
statements  in  the  prospectus  of  the  company  made  by  the  defendant, 
which  had  induced  the  plaintiff  to  make  the  purchase. 

Cotton,  L.  J.^°  *  *  *  q^j-ig  damage  to  be  recovered  by  the 
plaintiff  is  the  loss  which  he  sustained  by  acting  on  the  representations 
of  the  defendants.    That  action  was  taking  the  shares.    Before  he  was 

8  7  This  statement  is  abridged  from  that  of  the  official  report 
88  Part  of  the  opinion  is  omitted. 

8  9  Parts  of  the  opinions  in  this  case  are  omitted,  and  the  statement  of  facts 
Is  rewritten. 


522  DAMAGES  IN  CERTAIN  SPECIFIC  ACTIONS.  (Part    6 

induced  to  buy  the  shares,  he  had  the  £4000.  in  his  pocket.  The  day 
when  the  shares  were  allotted  to  him,  which  was  the  consequence  of 
his  action,  he  paid  over  that  £4000.,  and  he  got  the  shares;  and  the 
loss  sustained  by  him  in  consequence  of  his  acting  on  the  representa- 
tions of  the  defendants  was  having  the  shares,  instead  of  having  in 
his  pocket  the  £4000.  The  loss,  therefore,  must  be  the  difference  be- 
tween his  £4000.  and  the  then  value  of  the  shares.     *     *     * 

Sir  James  Hannen.  *  *  *  The  question  is,  how  much  worse 
off  is  the  plaintiff  than  if  he  had  not  bought  the  shares?  If  he  had  not 
bought  the  shares  he  would  have  had  his  £4000.  in  his  pocket.  To 
ascertain  his  loss  we  must  deduct  from  that  amount  the  real  value  of 
the  thing  he  got.  That  must  be  ascertained  by  the  light  of  the  events 
which  have  happened  down  to  the  time  of  the  inquiry — not  what  the 
shares  might  have  been  sold  for,  because  he  was  not  bound  to  sell 
them,  and  subsequent  events  may  shew  that  what  the  shares  might 
have  been  sold  for  was  not  their  true  value,  but  a  mistaken  estimate 
of  their  value. 

Lopes,  L.  J.  The  question  in  this  case  is  what  is  the  loss  which  the 
plaintiff  has  sustained  by  acting  on  the  mere  representation  of  the  de- 
fendants, and  what  is  the  true  measure  of  his  damage?  In  my  opinion, 
it  is  the  difference  between  the  £4000.  he  paid  and  the  real  value  of  the 
shares  after  they  were  allotted.  Any  damage  occurring  after  the  dis- 
covery of  the  fraud,  when  the  plaintiff  might  have  rescinded  the  con- 
tract, and  which  would  not  be  attributable  to  his  acting  on  the  misrepre- 
sentation, but  to  other  causes,  in  my  opinion  would  not  be  recov- 
erable." 


SECTION  4.— MISUSE  OF  LEGAL  MACHINERY. 


LYTTON  v.  BAIRD. 

(Supreme  Court  of  Indiana,  1S83,     95  Ind.  349.) 

CoLERiCK,  C.*^  This  was  an  action  for  malicious  prosecution 
brought  by  the  appellee  against  the  appellant.  The  complaint,  in  sub- 
stance, averred  that,  on  the  1st  day  of  February,  1881,  the  appellant 
maliciously,  and  without  probable  cause,  procured  the  grand  jury  of 
Monroe  county  to  indict  the  appellee  upon  a  charge  of  perjury;  that 
he  was  arrested  and  imprisoned,  and  afterward  gave  bond  for  his 
appearance  in  the  Monroe  circuit  court  to  answer  said  charge;    that 

4  0  See,  also,  Potter  v.  Mellen,  ante,  p.  16,  note,  and  cases  under  heading 
"Rreaclies  of  Warranty  Respecting  Personalty."  Further,  see  Morse  v. 
Hutchins,  102  Mass.  439  (1SG9),  Smith  v.  Bolles,  132  U.  S.  125,  10  Sup.  Ct.  39, 
33  L.  Ed.  279  (1889),  and  the  article  in  14  Harv.  Law  Rev.  454. 

41  Part  of  the  opinion  is  omitted. 


Ch.  1)  MISUSE    OF    LEGAL    MACHINERY.  ^23 

subsequently  such  proceedings  were  had  in  said  cause  that  he  was 
fully  and  finally  discharged  from  said  prosecution ;  that  said  charge 
was  wholly  false;  that  he  was  compelled  to  expend  and  become  liable 
for  a  large  amount,  to  wit,  $1,000,  in  employing  counsel  and  preparing 
for  the  defence  of  the  case,  and  that  he  was  damaged  in  the  sum  of 
$5,000,  for  which  he  demanded  judgment.     *     *     * 

The  appellant  complains  of  the  eleventh  instruction,  and  contends 
that  it  is  erroneous:  (1)  Because  it  informed  the  jury  that  if  they 
found  for  the  appellee,  in  assessing  his  damages  they  should  give 
"such  damages  as  will  compensate  him  for  any  actual  expense  and 
loss  he  has  sustained  by  reason  of  the  prosecution.  (2)  because  tne 
iury  were  told  that  they  had  the  right  to  add  such  other  damages  as 
they  thought,  under  the  circumstances,  would  be  proper  as  punitive 

damages.  .  ^     „ 

The  averment  in  the  complaint  relative  to  expenses  actually  in- 
curred by  the  appellee  by  reason  of  the  prosecution,  was,     ihat  he 
was  compelled  to  expend  and  become  liable  for  a  large  amount  to  wit, 
$1  000  in  employing  counsel  and  preparing  for  the  defence  of  the  case. 
Tliere  was  no  averment  that  he  had  incurred  any  other  expenses,  or 
had  sustained  any  losses,  by  reason  of  the  prosecution.    The  only  dam- 
ages for  expenses  that  he  could  have  recovered,  under  this  averment, 
were  those  therein  mentioned;  he  was  not  entitled  to  recover  damages 
for  losses  sustained  by  him,  as  none  were  averred.    The  instruction, 
in  this  respect,  was  erroneous,  but  it  was  a  harmless  error,  as  no  evi- 
dence was  introduced  on  the  trial  to  prove  that  any  such  losses  had 
been  sustained  by  the  appellee,  or  that  any  expenses  had  been  incurred 
by  him  other  than  those  caused  by  the  employment  of  counsel  to  de- 
fend him  on  the  criminal  charge.     These  he  was  entitled  to  recover 
although  they  were  then  unpaid.    Ziegler  v.  Powell,  54  Ind.  1.3.    but 
the  appellant  has  no  cause  to  complain  of  that  part  of  the  mstruction 
relating  to  compensatory  damages,  as  the  rule  fixed  by  the  court  for 
their  measurement,  except  in  the  respect  to  which  we  have  referred, 
was  restricted  to  narrower  limits  than  the  law  justified.     If    as  in 
this  case,  the  malicious  prosecution  complained  of  is  founded  upon 
a  criminal  charge,  on  which  the  defendant  therein  was  arrested,  he 
has  a  ri-ht  to  indemnity  for  all  the  injury  to  reputation,   feelings, 
health,  mind  and  person  caused  by  the  arrest,  including  the  expenses 
of  his  defence.    Sheldon  v.  Carpenter,  4  N.  Y.  579,  55  Am.  Dec.  301 ; 
2  Greenl    Ev.  §  456;    3  Phillips,  Ev.  p.  573.     The  allegations  ot  the 
complaint  were  sufficiently  broad  to  authorize  such  damages,  as  they 
recited  the  arrest  and  imprisonment  of  the  appellee. 

The  right  in  such  actions  to  recover  punitive  damages  is  well  set- 
tled by  the  authorities.  The  jury,  in  estimating  damages,  are  not  con- 
fined to  the  actual  damages  proved,  but  they  may,  in  the  exercise  ot 
a  sound  discretion,  give  exemplary  or  punitive  damages.  Ziegler  v. 
Powell,  supra;  Lawrence  v.  Ilagerman,  56  111.  68,  8  Am.  Rep.  6.4. 
The  jury  may  take  into  consideration  all  the  circumstances  of  the  case, 


524  DAMAGES   IN   CERTAIN   SrECIFIC  ACTIONS.  (Part    6 

and  award  such  damages  as  will  not  only  be  a  compensation  for  the 
wrong  and  indignity  sustained  in  consequence  of  the  wrongful  act, 
but  may  also  award  exemplary  or  punitive  damages  as  a  punishment 
for  such  act.    *     *     * « 


LAWRENCE  v.  HAGERMAN. 

(Supreme  Court  of  Illinois,  1870.     5G  111.  68,  8  Am.  Rep.  674.) 

This  was  an  action  on  the  case,  brought  by  Hagerman  against  Law- 
rence and  others,  to  recover  damages  for  the  wrongful  and  malicious 
suing  out  by  the  defendants  of  a  writ  of  attachment,  without  probable 
cause,  and  causing  the  same  to  be  levied  upon  the  goods  and  chattels 
of  the  plaintiff. 

Scott,  J.*^  *  *  ♦  ^^^  main  objection  taken  is  to  the  evidence 
offered  to  establish  the  measure  of  damages.  It  seems  to  us  that  the 
averments  in  the  declaration  are  broad  and  comprehensive  enough  to 
admit  of  evidence  of  all  the  injuries  sustained  in  consequence  of  the 
wrongful  act  alleged.  For  the  purpose  of  estimating  the  extent  and 
magnitude  of  the  injury,  the  court  permitted  the  appellee  to  intro- 
duce evidence  of  the  nature,  character,  and  amount  of  business  trans- 
acted at  and  before  the  date  of  the  wrongful  levy,  and  also  evidence 
of  the  complete  destruction  of  that  business,  and  of  the  extent  to  which 
the  credit  and  financial  reputation  of  the  appellee  were  impaired,  and 
also  evidence  of  the  actual  loss  of  the  stock  levied  on,  and  of  the 
expenses  incurred  in  and  about  the  defense  of  the  suit.  No  reason 
is  perceived  why  these  facts  do  not  constitute  proper  elements  for 
the  consideration  of  a  jury  in  estimating  the  damages  occasioned  by 
the  tortious  act  of  the  appellant.  The  evidence  was  pertinent  to  the 
issue  made  by  the  pleadings  and  the  issue  stated  was  broad  enough  to 
admit  the  proof. 

In  actions  on  the  case  the  party  injured  may  recover  from  the  guilty 
party  for  all  the  direct  and  actual  damages  of  the  wrongful  act  and  the 
consequential  damages  flowing  therefrom.  The  injured  party  is  en- 
titled to  recover  the  actual  damages  and  such  as  are  the  direct  and 
natural  consequence  of  the  tortious  act. 

In  this  instance  the  amount  of  money  actually  paid  out  in  and  about 
the  defense  of  the  suit,  and  the  depreciation  of  the  value  of  the  stock 
on  which  the  wrongful  levy  is  alleged  to  have  been  made,  are  not  the 
only  damages  sustained,  if  the  appellant  wrongfully,  unjustly  and 
maliciously  and  without  probable  cause  sued  out  the  writ  of  attach- 
ment and  caused  the  same  to  be  levied  in  the  manner  charged.  The 
business  of  the  appellee  had  hitherto  been  prosperous,  his  credit  and 
financial   reputation  good,   and   all   were  destroyed   by   the  malicious 

*2  See,  also,  Spear  v.  Hiles,  67  Wis.  350,  30  N.  W.  506  (1886). 
«8  Part  of  the  opinion  is  omitted. 


Ch.  1)  MISUSE    OF    LEGAL    MACHINERY.  525 

acts  of  the  appellant,  if  it  be  conceded  that  he  was  guilty  as  alleged. 
It  cannot  be  said  that  the  law  will  afford  no  redress  for  the  destruc- 
tion of  financial  credit  and  reputation,  or  mete  out  no  measure  of  pun- 
ishment to  the  guilty  party  who  wantonly  and  maliciously  destroys 
them.  The  reputation  and  credit  of  a  man  in  business  is  of  great 
value,  and  is  as  much  within  the  protection  of  the  law  as  property  or 
other  valuable  rights.  And  if  it  be  true  that  the  appellant  has  mali- 
ciously, by  his  wrongful  act,  destroyed  the  business,  credit  and  repu- 
tation of  the  appellee,  the  law  will  require  him  to  make  good  the  loss 
sustained.    Chapman  v.  Kirby,  49  111.  211. 

The  instructions  given  for  the  appellee  announce  these  principles 
with  sufficient  accuracy.  The  jury  were  correctly  told  that  in  estimat- 
ing the  damages  they  might  take  into  consideration  any  injury  shown 
by  the  evidence  that  the  appellee  sustained  in  his  business  and  reputa- 
tion, together  with  the  losses  actually  sustained  by  the  wrongful  suing 
out  of  the  writ  of  attachment.  The  jury  were  also  instructed  that 
they  were  not  confined  to  the  actual  damages,  if  the  wrongful  acts 
were  wantonly  and  maliciously  committed,  but  they  might  give  exem- 
plary damages.    Such  is  the  well  established  rule  of  the  law.    ****** 

44  See,  also,  Ross  v.  Leggett,  ante,  p.  486,  and  cases  under  heading  "Court 
Expenses." 


526  DAMAGES  IN  CERTAIN  SPECIFIC  ACTIONS.  (Part    6 

CHAPTER  II. 
IN  CERTAIN  SPECIFIC  CONTRACT  ACTIONS. 


SECTION  1.— IN  THOSE  RESPECTING  SERVICES. 


STARK  V.  PARKER. 

(Supreme  Judicial  Court  of  Massachusetts,  ]S24.     2  Pick.  267,  3  Am.  Dec.  425.) 

Lincoln,  J.i  *  *  *  The  exceptions  present  a  precise  abstract 
question  of  law  for  consideration,  namely,  whether  upon  an  entire  con- 
tract for  a  term  of  service  for  a  stipulated  sum,  and  a  part  performance, 
without  any  excuse  for  neglect  of  its  completion,  the  party  guilty  of 
the  neglect  can  maintain  an  action  against  the  party  contracted  with,  for 
an  apportionment  of  the  price,  or  a  quantum  meruit,  for  the  services 
actually  performed.     *     *     * 

It  is  no  less  repugnant  to  the  well-established  rules  of  civil  juris- 
prudence, than  to  the  dictates  of  moral  sense,  that  a  party  who  deliber- 
ately and  understandingly  enters  into  an  engagement  and  voluntarily 
breaks  it,  should  be  permitted  to  make  that  very  engagement  the  foun- 
dation of  a  claim  to  compensation  for  services  under  it.  *  *  *  A 
distinction  has  been  uniformly  recognized  in  the  construction  of  con- 
tracts, between  those  in  which  the  obligation  of  the  parties  is  recipro- 
cal and  independent,  and  those  where  the  duty  of  the  one  may  be  con- 
sidered as  a  condition  precedent  to  that  of  the  other.  In  the  latter 
cases,  it  is  held,  that  the  performance  of  the  precedent  obligation  can 
alone  entitle  the  party  bound  to  it,  in  his  action.  Indeed  the  argument 
of  the  counsel  in  the  present  case  has  proceeded  entirely  upon  this  dis- 
tinction, and  upon  the  petitio  principii  in  its  application.  It  is  assumed 
by  him,  that  the  service  of  the  plaintiff  for  a  year  was  not  a  condition 
precedent  to  his  right  to  a  proportion  of  the  stipulated  compensation 
for  that  entire  term  of  service,  but  that  upon  a  just  interpretation  of 
the  contract,  it  is  so  far  divisible,  as  that  consistently  with  the  terms 
of  it,  the  plaintiff  having  laboured  for  any  portion  of  the  time,  may  re- 
ceive compensation  pro  tanto.     *     *     * 

A  proposition  apparently  more  objectionable  in  terms  can  hardly  be 
stated,  and  if  supported  at  all  it  must  rest  upon  the  most  explicit  au- 
thority. The  plaintiff  sues  in  indebitatus  assumpsit  as  though  there 
was  no  special  contract,  and  yet  admits  the  existence  of  the  contract  to 
affect  the  amount  he  shall  recover.    The  defendant  objects  to  the  re- 

1  Part  of  tlie  opinion  is  omitted. 


Ch.  2}  IN    CONTRACTS    RESPECTING    SERVICES.  527 

covery  of  the  plaintiff  on  the  express  contract  which  has  been  broken, 
and  is  himself  charged  with  damages  for  the  breach  of  an  implied  one 
which  he  never  entered  into.  The  rule  that  expressum  facit  cessare 
taciturn  is  as  applicable  to  this,  as  to  every  other  case.  If  the  contract  is 
entire  and  executory,  it  is  to  be  declared  upon.  Where  it  is  executed 
and  a  mere  duty  to  pay  the  stipulated  compensation  remains,  a  general 
count  for  the  money  is  sufficient. 

Numerous  instances  are  indeed  to  be  found  in  the  books  of  actions 
being  maintained  where  the  specific  contract  has  not  been  executed  by 
the  party  suing  for  compensation,  but  in  every  case  it  will  be  seen  that 
the  precise  terms  of  the  contract  have  been  first  held,  either  to  have 
been  expressly  or  impliedly  waived,  or  the  nonexecution  excused  upon 
some  known  and  settled  principle  of  law.  *  *  *  Nothing  can  be 
more  unreasonable  than  that  a  man  who  deliberately  and  wantonly 
violates  an  engagement,  should  be  permitted  to  seek  in  a  court  of  jus- 
tice an  indemnity  from  the  consequences  of  his  voluntary  act,  and  we 
are  satisfied  that  the  law  will  not  allow  it. 

That  such  a  contract  as  is  supposed  in  the  exceptions  before  us  ex- 
presses a  condition  to  be  performed  by  the  plaintiff  precedent  to  his 
right  of  action  against  the  defendant,  we  cannot  doubt.  The  plaintiff 
was  to  labour  one  year  for  an.  agreed  price.  The  money  was  to  be  paid 
in  compensation  for  the  service,  and  not  as  a  consideration  for  an  en- 
gagement to  serve.  *  *  *  The  agreement  of  the  defendant  w^as  as 
entire  on  his  part  to  pay,  as  that  of  the  plaintiff  to  serve.  The  latter 
was  to  serve  one  year,  the  former  to  pay  one  hundred  and  twenty  dol- 
lars.    *     *     * 

■The  performance  of  a  year's  service  was  in  this  case  a  condition  pre- 
cedent to  the  obligation  of  payment.  The  plaintiff  must  perform  the 
condition,  before  he  is  entitled  to  recover  anything  under  the  contract, 
and  he  has  no  right  to  renounce  his  agreement  and  recover  upon  a 
quantum  meruit     *     *     *  2 

2  In  Cutter  v.  Powell.  G  Term  R.  320  (1795),  it  was  held  that  there  was  no 
recovery  on  the  contract  or  on  a  quantum  meruit  if  the  plaintiff  ^fjei"  de- 
fault. Important  later  cases  were  Ilulle  v.  Heightman  ^  I^^st.  14o  ISO-  , 
Ellis  V.  Hamlen,  3  Taunt.  52  (ISIO) ;  Spain  v.  Arnott,  2  Starkie,  2ob  (IM. ) . 
Turner  v.  Rol.inson.  0  Car.  c<.  P.  15  (1834);  Ridgway  v.  H.  M.  Co.,  3  Adol. 
&  E  171  (18.35)-  Sinclair  v.  Bowles,  9  Barn.  &  C.  92  (1829);  Roberts  v. 
Havelock  3  Barn.  &  Adol.  4W  (1832).  A  number  of  exceptions  were  ingrafted 
on  the  rule.  Read  v.  Rann,  10  Barn.  &  C.  438  (1830);  Farnsworth  v.  (,ar- 
rard  1  Camp.  38  (1807):  Denew  v.  Daverell,  3  Camp.  451  (1813);  Dakin  v 
Oxlev  15  C.  B.  (N.  S.)  016  (1804) ;  Chapel  v.  Ilickes,  2  Cromp.  M.  &  R.  214 
(1833)'-  Goodman  v.  Pocock.  15  Q.  B.  570  (18.50);  Buxton  v.  Cornish.  12 
Mees  &  W  4"G  (1844).  If  the  other  party  be  in  default,  a  recovery  on  a  (pian- 
tum  meruit  is  allowed  bv  the  English  cases.  Withers  v.  Reynolds.  2  Barn. 
&  Adol.  882  (1831);  Franklin  v.  Miller,  4  Adol.  &  E  599  (1S:3G) ;  Planche  v. 
Colburn.  8  Ring.  14  (1831);  Prickett  v.  Badger.  1  C.  B.  (X.  S^)  29b  IS-.G). 
Ehrensperger  v.  Anderson.  3  Excli.  148  (1848);  Hochster  v.  De  la  lour.  2 
El.  &  Bl.  678  (1853).     See,  also,  Thurston's  Cases  on  Quasi  Contracts. 


528  DAMAGES  IN  CERTAIN  SPECIFIC  ACTIONS.  (Part    6 

BRITTON  V.  TURNER. 

(Supreme  Court  of  New  Hampshire,  1834.     6  N.  H.  481,  26  Am.  Dec.  713.) 

Parker,  J.'  It  may  be  assumed  that  the  labor  performed  by  the 
plaintiff,  and  for  which  he  seeks  to  recover  a  compensation  in  this  ac- 
tion, was  commenced  under  a  special  contract  to  labor  for  the  defend- 
ant the  term  of  one  year,  for  the  sum  of  $120,  and  that  the  plaintiff 
has  labored  but  a  portion  of  that  time,  and  has  voluntarily  failed  to 
complete  the  entire  contract. 

It  is  clear,  then,  that  he  is  not  entitled  to  recover  upon  the  contract 
itself,  because  the  service,  which  was  to  entitle  him  to  the  sum  agreed 
upon,  has  never  been  performed. 

But  the  question  arises,  can  the  plaintiff,  under  these  circumstances, 
recover  a  reasonable  sum  for  the  service  he  has  actually  performed, 
under  the  count  in  quantum  meruit?  Upon  this,  and  questions  of  a 
similar  nature,  the  decisions  to  be  found  in  the  books  are  not  easily 
reconciled. 

It  has  been  held,  upon  contracts  of  this  kind  for  labor  to  be  per- 
formed at  a  specified  price,  that  the  party  who  voluntarily  fails  to  ful- 
fill the  contract  by  performing  the  whole  labor  contracted  for,  is  not 
entitled  to  recover  any  thing  for  the  labor  actually  performed,  how- 
ever much  he  may  have  done  towards  the  performance,  and  this  has 
been  considered  the  settled  rule  of  law  upon  this  subject.  Stark  v. 
Parker,  2  Pick.  267,  13  Am.  Dec.  425.  *  *  *  That  such  a  rule  in 
its  operation  may  be  very  unequal,  not  to  say  unjust,  is  apparent. 

A  party  who  contracts  to  perform  certain  specified  labor,  and  who 
breaks  his  contract  in  the  first  instance,  without  any  attempt  to  perform 
it,  can  only  be  made  liable  to  pay  the  damages  which  the  other  party 
has  sustained  by  reason  of  such  non  performance,  which  in  many  in- 
stances may  be  trifling;  whereas  a  party  who  in  good  faith  has  entered 
upon  the  performance  of  his  contract,  and  nearly  completed  it,  and 
then  abandoned  the  further  performance — although  the  other  party 
has  had  the  full  benefit  of  all  that  has  been  done,  and  has  perhaps  sus- 
tained no  actual  damage — is  in  fact  subjected  to  a  loss  of  all  which 
has  been  performed,  in  the  nature  of  damages  for  the  non  fulfillment 
of  the  remainder,  upon  the  technical  rule,  that  the  contract  must  be 
fully  performed  in  order  to  a  recovery  of  any  part  of  the  compensation. 

By  the  operation  of  this  rule,  then,  the  party  who  attempts  perform- 
ance may  be  placed  in  a  much  worse  situation  than  he  who  wholly  dis- 
regards his  contract,  and  the  other  party  may  receive  much  more,  by 
the  breach  of  the  contract,  than  the  injury  which  he  has  sustained  by 
such  breach,  and  more  than  he  could  be  entitled  to  were  he  seeking 
to  recover  damages  by  an  action. 

The  case  before  us  presents  an  illustration.  Had  the  plaintiff  in  this 
case  never  entered  upon  the  performance  of  his  contract,  the  damage 

8  Part  of  the  opinion  is  omitted. 


Ch.  2)  IN    CONTRACTS    RESPECTING    SERVICES.  529 

could  not  probably  have  been  greater  than  some  small  expense  and 
trouble  incurred  in  procuring  another  to  do  the  labor  which  he  had  con- 
tracted to  perform.  But  having  entered  upon  the  performance,  and 
labored  nine  and  a  half  months,  the  value  of  which  labor  to  the  defend- 
ant as  found  by  the  jury  is  $95,  if  the  defendant  can  succeed  in  this 
defence,  he  in  fact  receives  nearly  five  sixths  of  the  value  of  a  whole 
year's  labor,  by  reason  of  the  breach  of  contract  by  the  plaintiff,  a  sum 
not  only  utterly  disproportionate  to  any  probable,  not  to  say  possible 
damage  which  could  have  resulted  from  the  neglect  of  the  plaintiff  to 
continue  the  remaining  two  and  a  half  months,  but  altogether  beyond 
any  damage  which  could  have  been  recovered  by  the  defendant,  had  the 
plaintiff  done  nothing  towards  the  fulfillment  of  his  contract.     *     *     * 

There  are  other  cases,  however,  in  which  principles  have  been  adopt- 
ed leading  to  a  different  result.  It  is  said,  that  where  a  party  contracts 
to  perform  certain  work,  and  to  furnish  materials,  as,  for  instance,  to 
build  a  house,  and  the  work  is  done,  but  with  some  variations  from  the 
mode  prescribed  by  the  contract,  yet  if  the  other  party  has  the  benefit 
of  the  labor  and  materials  he  should  be  bound  to  pay  so  much  as  they 
are  reasonably  worth.     *     *     * 

Those  cases  are  not  to  be  distinguished,  in  principle,  from  the  pres- 
ent, unless  it  be  in  the  circumstance  that  where  the  party  has  con- 
tracted to  furnish  materials,  and  do  certain  labor,  as  to  build  a  house 
in  a  specified  manner,  if  it  is  not  done  according  to  the  contract,  the 
party  for  whom  it  is  built  may  refuse  to  receive  it — elect  to  take  no  ben- 
efit from  what  has  been  performed;  and  therefore  if  he  does  receive, 
he  shall  be  bound  to  pay  the  value,  whereas  in  a  contract  for  labor, 
merely,  from  day  to  day,  the  party  is  continually  receiving  the  benefit 
of  the  contract  under  an  expectation,  that  it  will  be  fulfilled,  and  can- 
not, upon  the  breach  of  it,  have  an  election  to  refuse  to  receive  what 
has  been  done,  and  thus  discharge  himself  from  payment. 

But  we  think  this  difference  in  the  nature  of  the  contracts  does  not 
justify  the  application  of  a  different  rule  in  relation  to  them.  The  par- 
ty who  contracts  for  labor  merely,  for  a  certain  period,  does  so  with 
full  knowledge  that  he  must,  from  the  nature  of  the  case,  be  accepting 
part  performance  from  day  to  day,  if  the  other  party  commences  the 
performance,  and  with  knowledge  also  that  the  other  may  eventually 
fail  of  completing  the  entire  term. 

If  under  such  circumstances  he  actually  receives  a  benefit  from  tne 
labor  performed,  over  and  above  the  damage  occasioned  by  the  failure 
to  complete,  there  is  as  much  reason  why  he  should  pay  the  reason- 
able worth  of  what  has  been  done  for  his  benefit,  as  there  is  when  he 
enters  and  occupies  the  house  w^hich  has  been  built  for  him,  but  not  ac- 
cording to  the  stipulations  of  the  contract,  and  which  he  perhaps  en- 
ters, not  because  he  is  satisfied  with  what  has  been  done,  but  because 
circumstances  compel  him  to  accept  it  such  as  it  is,  that  he  should  pay 
for  the  value  of  the  house.  *  *  * 
Gilb.Dam.— 34 


530  DAMAGES  IN  CERTAIN  SPECIFIC  ACTIONS.  (Part   6 

It  is  said,  that  in  those  cases  where  the  plaintiff  has  been  permitted 
to  recover  there  was  an  acceptance  of  what  had  been  done.  The  an- 
swer is,  that  where  the  contract  is  to  labor  from  day  to  day,  for  a 
certain  period  as  it  is  performed,  and  although  the  other  may  not 
eventually  do  all  he  has  contracted  to  do,  there  has  been,  necessarily, 
an  acceptance  of  what  has  been  done  in  pursuance  of  the  contract,  and 
the  party  must  have  understood  when  he  made  the  contract  that  there 
was  to  be  such  acceptance. 

If  then  the  party  stipulates  in  the  outset  to  receive  part  performance 
from  time  to  time,  with  a  knowledge  that  the  whole  may  not  be  com- 
pleted, we  see  no  reason  why  he  should  not  equally  be  holden  to  pay 
for  the  amount  of  value  received,  as  where  he  afterwards  takes  the 
benefit  of  what  has  been  done,  with  a  knowledge  that  the  whole  which 
was  contracted  for  has  not  been  performed.  In  neither  case  has  the 
contract  been  performed.  In  neither  can  an  action  be  sustained  on  the 
original  contract.  In  both  the  party  has  assented  to  receive  what  is 
done.  The  only  difference  is,  that  in  the  one  case  the  assent  is  prior, 
with  a  knowledge  that  all  may  not  be  performed,  in  the  other  it  is  sub- 
sequent, with  a  knowledge  that  the  whole  has  not  been  accomplished. 

We  have  no  hesitation  in  holding  that  the  same  rule  should  be  applied 
to  both  classes  of  cases,  especially,  as  the  operation  of  the  rule  will  be 
to  make  the  party  who  has  failed  to  fulfill  his  contract,  liable  to  such 
amount  of  damages  as  the  other  party  has  sustained,  instead  of  sub- 
jecting him  to  an  entire  loss  for  a  partial  failure,  and  thus  making  the 
amount  received  in  many  cases  wholly  disproportionate  to  the  injury. 
Pordage  v.  Cole,  1  Saund.  320c;   2  Starkie,  Ev.  643. 

It  is  as  "hard  upon  the  plaintiff  to  preclude  him  from  recovering  at 
all,  because  he  has  failed  as  to  part  of  his  entire  undertaking,"  where 
his  contract  is  to  labor  for  a  certain  period,  as  it  can  be  in  any  other 
description  of  contract,  provided  the  defendant  has  received  a  benefit 
and  value  from  the  labor  actually  performed. 

We  hold  then,  that  where  a  party  undertakes  to  pay  upon  a  special 
contract  for  the  performance  of  labor,  or  the  furnishing  of  materials, 
he  is  not  to  be  charged  upon  such  special  agreement  until  the  money 
is  earned  according  to  the  terms  of  it;  and  where  the  parties  have 
made  an  express  contract  the  law  will  not  imply  and  raise  a  contract 
different  from  that  which  the  parties  have  entered  into,  except  upon 
some  farther  transaction  between  the  parties. 

In  case  of  a  failure  to  perform  such  special  contract,  by  the  default 
of  the  party  contracting  to  do  the  service,  if  the  money  is  not  due  by 
the  terms  of  the  special  agreement  he  is  not  entitled  to  recover  for  his 
labor,  or  for  the  materials  furnished,  unless  the  other  party  receives 
what  has  been  done,  or  furnished,  and  upon  the  whole  case  derives  a 
benefit  from  it.  Taft  v.  Inhabitants  of  Montague,  14  Mass.  282,  7 
Am.  Dec.  215 ;  2  Starkie,  Ev.  644. 

But  if,  where  a  contract  is  made  of  such  a  character,  a  party  actual- 
ly receives  labor  or  materials,  and  thereby  derives  a  benefit  and  ad- 


Ch.  2)  IN    CONTKACTS    UKSI'KCTING    SERVICES.  531 

vantage,  over  and  above  the  damage  which  has  resulted  from  the 
breach  of  the  contract  by  the  other  party,  the  labor  actually  done,  and 
the  value  received,  furnish  a  new  consideration,  and  the  law  thereupon 
raises  a  promise  to  pay  to  the  extent  of  the  reasonable  worth  of  such 
excess.  This  may  be  considered  as  making  a  new  case,  one  not  within 
the  original  agreement,  and  the  party  is  entitled  to  "recover  on  his 
new  case,  for  the  work  done,  not  as  agreed,  but  yet  accepted  by  the  de- 
fendant."    1  Dane,  Abr.  224. 

If  on  such  failure  to  perform  the  whole,  the  nature  of  the  contract 
be  such  that  the  employer  can  reject  what  has  been  done,  and  refuse 
to  receive  any  benefit  from  the  part  performance,  he  is  entitled  so  to  do, 
and  in  such  case  is  not  liable  to  be  charged,  unless  he  has  before  as- 
sented to  and  accepted  of  what  has  been  done,  however  much  the  other 
party  may  have  done  towards  the  performance.  He  has  in  such  case 
received  nothing,  and  having  contracted  to  receive  nothing  but  the 
entire  matter  contracted  for,  he  is  not  bound  to  pay,  because  his  ex- 
press promise  was  only  to  pay  on  receiving  the  whole,  and  having 
actually  received  nothing  the  law  cannot  and  ought  not  to  raise  an  im- 
plied promise  to  pay.  But  where  the  party  receives  value,  takes  and 
uses  the  materials,  or  has  advantage  from  the  labor,  he  is  liable  to  pay 
the  reasonable  worth  of  what  he  has  received.  Farnsworth  v.  Garrard, 
1  Camp.  38.  And  the  rule  is  the  same  whether  it  was  received  and  ac- 
cepted by  the  assent  of  the  party  prior  to  the  breach,  under  a  contract 
by  which,  from  its  nature,  he  was  to  receive  labor,  from  time  to  time 
until  the  completion  of  the  whole  contract;  or  whether  it  was  receiv- 
ed and  accepted  by  an  assent  subsequent  to  the  performance  of  all 
which  was  in  fact  done.  If  he  received  it  under  such  circumstances 
as  precluded  him  from  rejecting  it  afterwards,  that  does  not  alter  the 
case;   it  has  still  been  received  by  his  assent. 

In  fact,  we  think  the  technical  reasoning,  that  the  performance  of 
the  whole  labor  is  a  condition  precedent,  and  the  right  to  recover  any- 
thing dependent  upon  it ;  that,  the  contract  being  entire,  there  can  be 
no  apportionment ;  and  that,  there  being  an  express  contract,  no  other 
can  be  implied,  even  upon  the  subsequent  performance  of  service — is 
not  properly  applicable  to  this  species  of  contract,  where  a  beneficial 
service  has  been  actually  performed;  for  we  have  abundant  reason  to 
believe,  that  the  general  understanding  of  the  community  is,  that  the 
hired  laborer  shall  be  entitled  to  compensation  for  the  service  actually 
performed,  though  he  do  not  continue  the  entire  tcnn  contracted  for,  and 
such  contracts  must  be  presumed  to  be  made  with  reference  to  that  un- 
derstanding, unless  an  express  stipulation  shows  the  contrary.     *     *     * 

The  amount,  however,  for  which  the  employer  ought  to  be  charged, 
where  the  laborer  abandons  his  contract,  is  only  the  reasonable  worth 
or  the  amount  of  advantage  he  receives  upon  the  whole  transaction 
(Wadleigh  v.  Sutton,  6  N.  H.  15,  23  Am.  Dec.  704)  ;  and,  in  estimat- 
ing the  value  of  the  labor,  the  contract  price  for  the  service  cannot  be 
exceeded    (Hayden  v.  Inhabitants  of  Madison,  7  Greenl.    \Me.]    78; 


532  DAMAGES   IN   CERTAIN  SPECIFIC  ACTIONS.  (Part   6 

Dubois  V.  Canal  Co.,  4  Wend.  [N.  Y.]  285;  Koon  v.  Greenman,  7 
Wend.  [N.  Y.]  121). 

If  a  person  makes  a  contract  fairly  he  is  entitled  to  have  it  fully  per- 
formed;  and  if  this  is  not  done  he  is  entitled  to  damages.  He  may 
maintain  a  suit  to  recover  the  amount  of  damage  sustained  by  the  non 
performance. 

The  benefit  and  advantage  which  the  party  takes  by  the  labor,  there- 
fore, is  the  amount  of  value  which  he  receives,  if  any,  after  deducting 
the  amount  of  damage;  and  if  he  elects  to  put  this  in  defence  he  is 
entitled  so  to  do,  and  the  implied  promise  which  the  law  will  raise,  in 
such  case,  is  to  pay  such  amount  of  the  stipulated  price  for  the  whole 
labor,  as  remains  after  deducting  what  it  would  cost  to  procure  a  com- 
pletion of  the  residue  of  the  service,  and  also  any  damage  which  has 
been  sustained  by  reason  of  the  non  fulfillment  of  the  contract. 

If  in  such  case  it  be  found  that  the  damages  are  equal  to  or  greater 
than  the  amount  of  the  labor  performed,  so  that  the  employer,  having  a 
right  to  the  full  performance  of  the  contract,  has  not  upon  the  whole 
case  received  a  beneficial  service,  the  plaintiff  cannot  recover.     *     *     * 


ROGERS  v.  PARHAM. 

(Supreme  Court  of  Georgia,  1850.    8  Ga.  190.) 

Warner,  J.*  *  *  *  It  appears  that  the  plaintiff  and  defendant 
entered  into  a  written,  special  contract,  by  which  the  former  was  to  act 
as  the  overseer  of  the  latter,  for  the  year  1847,  and  to  receive  a  stipu- 
lated portion  of  the  crop  for  his  services.  The  plaintiff  alleges  that  the 
defendant,  in  the  month  of  August,  dismissed  him  from  his  employ- 
ment; and  this  suit  was  instituted  in  November,  1847,  to  recover  dam- 
ages from  the  defendant,  for  a  breach  of  his  special  contract.  The 
defendant  insisted,  that  the  plaintiff  should  be  nonsuited,  because  the 
action  was  prematurely  brought;  that  the  action  could  not  be  main- 
tained against  the  defendant  for  a  breach  of  the  contract,  until  the  ex- 
piration of  the  year  1847.  We  are  of  the  opinion  the  court  below 
properly  overruled  the  motion  for  nonsuit.  In  regard  to  this  particular 
class  of  special  contracts,  we  adopt  the  rule  stated  by  Smith,  in  his 
note  to  the  case  of  Cutter  v.  Powell.  When  the  overseer  or  agent  is 
wrongfully  dismissed  from  the  service  of  his  employer,  he  has  his 
election  of  three  remedies. 

(1)  He  may  bring  an  action,  immediately,  for  any  special  injury 
which  he  may  have  sustained,  in  consequence  of  a  breach  of  the  con- 
tract. 

(2)  He  may  wait  until  the  termination  of  the  period  for  which  he 
was  employed,  and  then  sue  upon  the  contract  and  recover  his  whole 
wages. 

4  Part  of  the  opinion  is  omittedi 


Ch.  2)  IN    CONTRACTS    RESPECTING    SERVICES. 


533 


(3)  He  may  treat  the  contract  as  rescinded,  and  may  immediately 
sue,  on  a  quantum  meruit,  for  the  work  and  labor  he  actually  per- 
formed.   Cutter  V.  Powell,  3  Smith's  Leading  Cases  (7th  Am.  Ed.)  27. 

Here,  the  plaintifi"  has  elected  to  sue  immediately  for  the  special  in- 
jury, which  he  alleges  he  has  sustained  by  the  breach  of  the  defendant's 
contract,  as  was  done  in  the  case  of  IMasterton  v.  Mayor  of  Brooklyn, 
7  Hill  (N.  Y.)  61,  42  Am.  Dec.  38.  That  the  plaintiff  might  have  sued 
before  the  end  of  the  year,  for  any  special  injury  which  he  may  have 
sustained  in  consequence  of  the  defendant's  breach  of  the  contract, 
I  do  not  doubt;  but  inasmuch  as  the  plaintiff  in  this  case  has  alleged 
no  other  injury,  arising  from  the  breach  of  the  contract,  than  that 
stipulated  by  the  contract  itself,  to  wit:  the  nonpayment  to  him  of  the 
value  of  his  part  of  the  crop,  I  have  a  doubt  in  my  own  mind,  whether 
this  is  not  substantially  an  action  on  the  contract  itself,  to  recover  the 
plaintiff's  share  of  the  crop,  stipulated  by  that  contract,  to  be  paid  him 
at  the  end  of  the  year.  However,  my  brethren  are  very  clear,  that  it 
is  an  action  for  a  breach  of  the  contract,  and,  as  I  believe  substantial 
justice  has  been  done  between  the  parties  by  the  verdict,  I  concur  with 
my  brethren  in  their  judgment,  in  overruling  the  motion  for  a  non- 
suit.    *     *     * 


BALDWIN  V.  BENNETT. 

(Supreme  Court  of  California,  1854.    4  Cal.  302.) 

This  was  an  action  brought  upon  an  express  contract,  to  pay  the 
plaintiff  a  certain  fee  for  legal  services,  with  a  condition  that  the 
property  in  question,  the  Tuolumne  Hydraulic  Association  ditch,  should 
be  secured  to  the  defendant.  Services  were  rendered  by  the  plaintiff, 
under  the  contract,  and  pending  the  litigation,  the  defendant  settled 
the  claim,  and  conveyed  by  deed  his  interest  in  the  property,  without 
the  advice  or  knowledge  of  the  plaintiff. 

The  plaintiff  claimed  to  be  entitled  to  the  sum  agreed  upon  by  the 
parties,  and  brought  suit  for  it. 

The  defendant  contended  that  the  plaintiff  was  only  entitled  to  re- 
cover what  his  services  were  worth,  without  regard  to  the  contract. 

The  jury  found  for  plaintiff  $5,000,  and  judgment  being  entered 
accordingly,  defendant  appealed. 

HeydenFeldT,  j  5  *  *  *  'pj^g  general  rule  as  to  measure  of 
damages  in  an  action  for  breach  of  contract,  is  correctly  given  by  ap- 
pellant's counsel.  It  "is  not  the  whole  price  agreed  to  be  paid,  but  the 
actual  loss  sustained,  which  will  consist  of  the  value  of  the  services 
rendered  and  the  damage  sustained  by  the  refusal  to  allow  perform- 
ance of  the  rest  of  the  contract." 

8  Part  of  ttie  opinion  is  omitted. 


534  DAMAGES  IN  CERTAIN  SPECIFIC  ACTIONS.  (Part    6 

To  this  rule  there  are,  however,  some  exceptions.  Where,  from 
the  nature  of  the  contract  (as  in  this  case),  no  possible  mode  is  left 
of  ascertaining  the  damage,  we  will  have  presented  the  anomalous 
case  of  a  wrong  without  a  remedy,  unless  we  adopt  the  only  measure 
of  damages  which  remains,  and  that  is,  the  price  agreed  to  be  paid. 
Without  this,  justice  would  be  defeated,  and  parties  encouraged  to 
violate  their  contracts  of  similar  character.  The  defendant  not  only 
breaks  his  contract,  but  also  deprives  the  party  of  showing  the  amount 
of  injury  under  the  general  rule.  He  cannot  complain  that  a  different 
rule  is  invoked,  when  it  is  the  only  one  left  to  make  him  responsible 
for  his  want  of  good  faith.  This  reasoning  was  adopted  in  a  case  pre- 
cisely similar,  by  the  Supreme  Court  of  Alabama.     *     *     * 


McMULLEN  V.  DICKINSON  CO. 

(Supreme  Court  of  Minnesota,  1895.    60  Minn.  156,  62  N.  W.  120,  27  L.  R.  A. 
409,  51  Am.  St.  Rep.  511.) 

See  ante,  p.  310,  for  a  report  of  the  case.* 


HAYWARD  V.  LEONARD. 

(Supreme  Judicial  Court  of  Massacliusetts,  1828.     7  Pick.   181,  19  Am.  Dec. 

268.) 

It  appeared  that  the  plaintiff  erected  a  house  upon  the  defendant's 
land  within  the  time  and  of  the  dimensions  stated  in  the  contract, 
but  that  in  workmanship  and  in  materials  it  was  not  according  to  the 
terms  of  the  agreement.'^ 

Parker,  C.  J.s  *  *  *  The  point  in  controversy  seems  to  be 
this :  whether  when  a  party  has  entered  into  a  special  contract  to  per- 
form work  for  another,  and  to  furnish  materials,  and  the  work  is  done 
and  the  materials  furnished,  but  not  in  the  manner  stipulated  for  in  the 
contract,  so  that  he  cannot  recover  the  price  agreed  by  an  action  on 
that  contract,  yet  nevertheless  the  work  and  materials  are  of  some 
value  and  benefit  to  the  other  contracting  party,  he  may  recover  on 

6  See.  also,  Sutherland  v.  Wyer,  ante,  p.  228;  Howard  v.  Daly,  ante,  p. 
313 ;  Liddell  v.  Chidester,  ante,  p.  319,  note ;  Fuchs  v.  Koerner,  ante,  p.  232. 
note;  Whitmarsh  v.  Littlefield.  ante,  p.  233;  Brigham  v.  Carlisle,  ante,  p.  256; 
Hichliorn,  Mack  &  Co.  v.  Bradley,  ante,  p.  258;  Hitchcock  v.  Supreme  Tent, 
etc..  ante,  p.  280,  note;  Dennis  v.  Maxfield,  ante,  p.  272. 

In  the  same  connection,  see  Olmstead  v.  Bach,  78  Md.  132,  27  Atl.  501, 
22  L.  R.  A.  74,  44  Am.  St.  Rep.  273  (1893) ;  Boland  v.  Glendale  Quarry  Co., 
127  Mo.  520,  30  S.  W.  151  (1895);  Mt.  Hope  Cem.  A.  v.  Weidenmann,  139 
111.  67,  28  N.  E.  834  (1891) ;  Gordon  v.  Brewster,  7  Wis.  355  (1858) ;  and  Cutter 
V.  Gillette,  163  Mass.  95,  39  N.  E.  1010  (1895). 

T  This  statement  is  abridged  from  that  of  the  official  report. 

8  Part  of  the  opinion  is  omitted. 


Ch.  2)  IN    CONTRACTS    RESPECTING    SERVICES.  535 

a  quantum  meruit  for  the  work  and  labour  done,  and  on  a  quantum 
valebant  for  the  materials.  We  think  the  weight  of  modem  authority 
is  in  favour  of  the  action,  and  that  upon  the  whole  it  is  conformable 
to  justice,  that  the  party  who  has  the  possession  and  enjoyment  of  the 
materials  and  labour  of  another,  shall  be  held  to  pay  for  them,  so  as 
in  all  events  he  shall  lose  nothing  by  the  breach  of  contract.  If  the 
materials  are  of  a  nature  to  be  removed  and  liberty  is  granted  to  re- 
move them,  and  notice  to  that  effect  is  given,  it  may  be  otherwise.  But 
take  the  case  of  a  house  or  other  building  fixed  to  the  soil,  not  built 
strictly  according  to  contract,  but  still  valuable  and  capable  of  being 
advantageously  used,  or  profitably  rented — there  having  been  no  pro- 
hibition to  proceed  in  the  work  after  a  deviation  from  the  contract 
has  taken  place — no  absolute  rejection  of  the  building,  with  notice 
to  remove  it,  from  the  ground;  it  would  be  a  hard  case  indeed  if 
the  builder  could  recover  nothing. 

And  yet  he  certainly  ought  not  to  gain  by  his  fault  in  violating  his 
contract,  as  he  may,  if  he  can  recover  the  actual  value;  for  he  may 
have  contracted  to  build  at  an  under  price,  or  the  value  of  such  prop- 
erty may  have  risen  since  the  contract  was  entered  into.  The  owner 
is  entitled  to  the  benefit  of  the  contract,  and  therefore  he  should  be 
held  to  pay  in  damages  only  so  much  as  will  make  the  price  good, 
deducting  the  loss  or  damage  occasioned  by  the  variation  from  the 
contract.     *     *     * 

It  is  laid  down  as  a  general  position  in  Buller's  Nisi  Prius,  139,  that 
if  a  man  declare  upon  a  special  contract  and  upon  a  quantum  meruit, 
and  prove  the  work  done  but  not  according  to  the  contract,  he  may 
recover  on  the  quantum  meruit,  for  otherwise  he  would  not  be  able  to 
recover  at  all.  Mr.  Dane  (volume  1,  p.  223)  disputes  this  doctrine, 
and  thinks  it  cannot  be  law  unless  the  imperfect  work  be  ac- 
cepted.    *     *     * 

Mr.  Dane's  reasoning  is  very  strong  in  the  place  above  cited,  and 
subsequently  in  volume  2,  p.  45,  to  show  that  the  position  of  Buller, 
in  an  unlimited  sense,  cannot  be  law ;  and  some  of  the  cases  he  puts 
are  decisive  in  themselves.  As  if  a  man  who  had  contracted  to  build 
a  brick  house,  had  built  a  wooden  one,  or  instead  of  a  house,  the 
subject  of  the  contract,  had  built  a  barn.  In  these  cases,  if  such  should 
ever  happen,  the  plaintiff  could  recover  nothing  without  showing  an 
assent  or  acceptance,  express  or  implied,  by  the  party  with  whom  he 
contracted.  Indeed  such  gross  violations  of  contract  could  not  happen 
without  fraud,  or  such  gross  folly  as  would  be  equal  to  fraud  in  its 
consequences.  When  we  speak  of  the  law  allowing  the  party  to  recover 
on  a  quantum  meruit  or  quantum  valebant,  where  there  is  a  special 
contract,  we  mean  to  confine  ourselves  to  cases  in  which  there  is  an 
honest  intention  to  go  by  the  contract,  and  a  substantive  execution  of 
it,  but  some  comparatively  slight  deviations  as  to  some  particulars 
provided  for.  Cases  of  fraud  or  gross  negligence  may  be  exceptions. 
In  looking  at  the  evidence   reported  in  this  case,   we  see  strong 


536  DAMAGES  IN  CERTAIN  SPECIFIC  ACTIONS.  (Part    6 

grounds  for  an  inference  that  the  defendant  waived  all  exceptions 
to  the  manner  in  which  the  work  was  done.  He  seems  to  have  known 
of  the  deviations  from  the  contract — directed  some  of  them  himself — 
suffered  the  plaintiff  to  go  on  with  his  work — made  no  objection  when 
it  was  finished,  nor  until  he  was  called  on  to  pay.  But  the  case  was  not 
put  to  the  jury  on  the  ground  of  acceptance  or  waiver,  but  merely  on 
the  question,  whether  the  house  was  built  pursuant  to  the  contract  or 
not;  and  if  not,  the  jury  were  directed  to  consider  what  the  house 
was  worth  to  the  defendant,  and  to  give  that  sum  in  damages.  We 
think  this  is  not  the  right  rule  of  damages ;  for  the  house  might  have 
been  worth  the  whole  stipulated  price,  notwithstanding  the  departures 
from  the  contract.  They  should  have  been  instructed  to  deduct  so 
much  from  the  contract  price,  as  the  house  was  worth  less  on  account 
of  these  departures. 


BEE  PRINTING  CO.  v.  HIGHBORN. 

(Supreme  Judicial  Court  of  Massachusetts,   18G2.     4  Allen,  63.) 

BiGELOW,  C.  J.»  *  *  *  After  the  alleged  breach  of  the  contract 
in  July,  1860,  by  the  refusal  of  the  plaintiffs  to  publish  certain  ad- 
vertisements sent  to  them  by  the  defendant,  the  latter  still  continued  to 
publish  advertisements  in  the  plaintiffs'  newspaper.  Instead  of  relying 
on  his  special  contract,  and,  when  it  was  broken  by  the  acts  of  the 
plaintiffs,  insisting  on  the  breach  and  claiming  damages  for  its  non- 
performance, he  subsequently  accepted  a  part  performance  of  the  con- 
tract by  the  plaintiffs.  This  severed  the  entirety  of  the  contract.  By 
his  own  consent,  with  full  knowledge  of  the.  breach,  the  defendant  re- 
ceived and  enjoyed  the  benefit  of  the  services,  labor  and  property  of  the 
plaintiffs.  Although  the  plaintiffs,  if  they  failed  to  perform  the  special 
contract  on  their  part,  are  debarred  from  maintaining  any  action  upon 
it,  yet  they  have  a  legal  claim  for  the  actual  value  of  the  labor  and  serv- 
ices performed  by  them,  which  the  defendant  has  accepted  and  enjoyed. 
From  the  act  of  the  defendant  in  continuing  to  send  his  advertisements 
to  the  plaintiffs  for  publication,  after  he  had  notice  of  the  alleged  breach 
by  them  of  the  special  contract,  and  thereby  taking  to  himself  the  ben- 
efit of  their  subsequent  labor,  services  and  material,  the  law  implies  a 
severance  of  the  original  entire  contract,  and  raises  a  promise  to  pay 
the  amount,  which  the  plaintiff's  reasonably  deserve  to  have.  Bowker 
V.  Hoyt,  18  Pick.  555;  Snow  v.  Ware,  13  Mete.  49;  Oxendale  v. 
Wetherell,  9  B.  &  C.  386 ;  Read  v.  Rann,  10  B.  &  C.  439 ;  2  Greenl. 
Ev.  §  136a.  There  is  no  allegation  or  proof  in  the  present  case,'  which 
tends  to  charge  the  plaintiffs  with  any  want  of  good  faith  in  the  al- 
leged failure  to  fulfil  the  special  contract  set  up  by  the  defendant.  They 
are  therefore  well  entitled  to  recover  the  fair  value  of  their  services. 
Snow  V.  Ware,  ubi  supra. 

«  Part  of  the  opinion  is  omitted. 


Ch.  2)  IN    CONTRACTS    RESPECTING    SERVICES.  53 1 

In  estimating  the  amount  which  the  plaintiffs  were  entitled  to  have 
for  the  beneficial  enjoyment  of  their  labor  and  services  by  the  defend- 
ant, it  was  proper  for  the  jury  to  deduct  the  loss  or  damage  which  he 
had  sustained  in  consequence  of  the  alleged  breach  of  the  special  con- 
tract. This  is  allowed  to  avoid  circuity  of  action,  so  that  substantial 
justice  may  be  done  between  the  parties  in  one  suit.  In  this  respect, 
the  instructions  were  correct,  and  in  conformity  with  the  rule  laid  down 
by  this  court  in  Bowker  v.  Hoyt,  ubi  supra. 


DOSTER  V.  BROWN. 

(Supreme  Court  of  Georgia,  1858.  25  Ga.  24,  71  Am.  Dec.  153.) 
McDonald,  J."  *  *  *  The  court  below  committed  no  error 
in  arresting  the  argument  of  plaintiff's  counsel,  that  he  was  entitled  to 
recover  the  amount  contracted  to  be  paid  to  him  although  the  work  was 
not  done,  if  he  was  prevented  by  the  act  of  God  from  finishing  it. 
There  is  no  such  principle.  He  might,  in  such  case,  be  entitled,  on  a 
quantum  meruit  count,  to  recover  for  what  materials  had  been  fur- 
nished and  the  work  which  he  had  done,  if  it  was  worth  any- 
thing.    *     *     * 

Such  extraordinary  and  resistless  calamities  enure  as  an  excuse  and 
relief  of  both  parties.  If  it  legally  releases  the  one  from  executing  a 
work  he  has  undertaken,  it  equally  protects  the  other  from  paying  for 
more  than  has  been  done. 

In  this  case  there  was  no  proof  of  the  value  of  the  work  done. 
The  party  relied  on  a  special  contract  and  sued  for  a  stipulated 
price.     *     *     *  ^^     Judgment  for  defendant. 


CUNNINGHAM  v.  DORSEY. 
(Supreme   Court  of  California,   1856.     6  Cal.   19.) 

This  action  was  brought  for  $3,150  damages  for  breach  of  a  con- 
tract made  by  plaintiff  and  defendants,  by  which  plaintiff  was  to  de- 
liver a  thousand  logs  (of  which  the  plaintiff  delivered  five  hundred)  at 
defendants'  sawmill,  and  for  which  the  latter  were  to  pay  a  fixed  price, 
and  for  hindering  the  plaintiff  from  fully  performing  his  part  of  the 
contract— the  amount  claimed  being  $6,400,  the  contract  price,  less 
an  admitted  payment. 

The  answer  denies,  etc.,  and  sets  up  an  offset  of  $904.68.  On  the 
trial  the  court,  at  the  request  of  the  plaintiff  and  under  the  exception 
of  the  defendants,  gave  the  jury  the  following  instruction,  which  was 
the  third  asked  for:  "That  if  the  jury  find  from  the  testimony  that  the 

10  Part  of  the  opinion  Is  omitted. 

11  See,  also,  Preble  v.  Bottom.  27  Vt.  249  (1855). 


538  DAMAGES   IN  CERTAIN   SPECIFIC   ACTIONS.  (Part    6 

plaintiff  was  prevented  from  the  full  performance  of  his  part  of  the 
contract  by  the  acts  of  the  defendants,  that  he  is  excused  from  a  fur- 
ther performance,  and  the  defendants  become  liable  to  pay  as  damages 
to  the  plaintiff  the  full  amount  agreed  to  be  paid  in  the  contract."  The 
court  afterwards,  at  defendants'  request,  instructed  the  jury  that  the 
rule  was  as  defined  in  the  opinion  of  the  court.  The  jury  found  a  ver- 
dict for  .plaintiff  for  $2,012.^2 

Heydrnfeldt,  J.^'  *  *  *  'j^j^g  third  instruction  given  by  the 
district  court,  at  the  request  of  the  plaintiff,  is  clearly  erroneous.  The 
true  rule  of  damages  is  the  value  of  the  labor  performed,  and  the 
amount  of  profit  which  could  fairly  have  been  derived  from  the  labor 
left  unperformed  by  the  act  of  the  defendants.  Although  afterwards, 
at  the  defendants'  request,  the  court  laid  down  the  correct  rule,  yet 
it  is  impossible  to  say  that  the  erroneous  instruction  first  given  had 
no  influence  upon  the  jury.     *     *     * 


UPSTONE  V.  WEIR. 

(Supreme  Court  of  California,  1880.     54  Cal.  124.) 

The  plaintiff  contracted  to  furnish  and  the  defendant  to  receive  a 
quantity  of  iron  work  at  a  stipulated  price.  The  defendant  refused 
afterwards  to  receive  all  that  was  contracted  for,  but  the  plaintiff  fur- 
nished all  that  he  would  take.  The  court  excluded  evidence  that  the 
quantity  actually  furnished  was  worth  $307  less  than  the  quantity  speci- 
fied in  the  contract,  and  instructed  the  jury  that  the  plaintiff  was  en- 
titled to  recover  the  full  amount  for  the  entire  quantity.    Reversed. 

Sharpstein,  J.^*  *  *  *  'j^j^g  j.yig^  ^g  ^yg  understand  it  to  be,  is 
this :  The  plaintiff,  having  sued  upon  the  contract,  is  entitled  to  recov- 
er, for  the  iron  work  furnished,  such  a  proportion  of  the  whole  con- 
tract price  as  the  quantity  which  he  furnished  bears  to  the  whole  quan- 
tity contracted  for ;  and,  in  addition  to  that,  the  profit  which  he  would 
have  made,  if  he  had  been  allowed  to  complete  his  contract,  together 
with  the  damages  he  incurred  in  providing  means  for  furnishing  the 
residue  of  the  iron  work  called  for  by  the  contract,  but  not  delivered, 
because  of  the  defendant's  breach. 

More  succinctly  stated,  the  rule  is,  recompense  to  the  plaintiff  for 
the  part  performance,  and  indemnity  for  his  loss  in  respect  to  the  part 
unexecuted.     *     *     * 

If  the  plaintiff  had  chosen  to  waive  his  contract,  and  sue  in  general 
assumpsit  for  materials  furnished,  then  his  measure  of  damages  would 
be  the  value  of  the  iron  work  actually  furnished.  In  no  aspect  of  the 
case  could  he  recover  for  part  performance  the  compensation  stipulat- 
ed in  the  contract  for  full  performance.     *     *     * 

12  This  statement  is  abridged  from  ttiat  of  tlie  official  report. 

13  Part  of  the  opinion  is  omitted. 

14  Part  of  the  opinion  is  omitted,  and  the  statement  of  facts  is  rewritten. 


Ch.  2)  IN    CONTRACTS    RESPECTING   SERVICES.  539 

CLARK  et  al.  v.  MAYOR,  ETC.,  OF  CITY  OF  NEW  YORK. 

(Court  of  Appeals  of  New  York,  1850.     4  N.  Y.  338,  53  Am.  Dec.  379.) 

Plaintiffs  contracted  to  construct  a  section  of  the  Croton  Aqueduct, 
but  were  prevented  from  completing  the  work  by  the  defendants.  The 
estimate  contemplated  the  removal  of  150,000  yards  of  rock  at  $1  per 
yard.  When  work  was  stopped,  68,786  yards  had  been  excavated,  of 
which  6,000  yards  were  worth  $-1:. 20  per  yard  and  the  residue  about 
$1.20  per  yard,  while  the  excavation  not  done  would  cost  only  35  cents 
per  yard.  There  was  due  for  work  done,  and  not  paid  for,  $i, 159.06, 
at  $1  per  yard.  A  judgment  was  found  for  this  sum  and  for  $46,800 
for  the  part  of  the  contract  not  completed.    Reversed. 

Pratt,  T.^°  *  *  *  It  is  clear  that  under  the  common  counts 
the  plaintiffs  can  not  recover  the  same  amount  of  damages  which  they 
might  be  entitled  to  recover  in  an  action  for  a  breach  of  the  special 
contract.  They  must  be  confined,  in  this  action,  either  to  the  price  of 
the  work  stipulated  in  the  contract,  or  the  actual  worth  of  the  work 
done.  When  parties  deviate  from  the  terms  of  a  special  contract,  the 
contract  price  w^ill,  so  far  as  applicable,  generally  be  the  rule  of  dam- 
ages. But  when  the  contract  is  terminated  by  one  party  against  the 
consent  of  the  other,  the  latter  will  not  be  confined  to  the  contract  price, 
but  may  bring  his  action  for  a  breach  of  the  contract  and  recover  as 
damages  all  that  he  may  lose  by  way  of  profits  in  not  being  allowed  to 
fulfil  the  contract ;  or  he  may  waive  the  contract  and  brings  his  action 
on  the  common  counts  for  work  and  labor  generally,  and  recover  what 
the  work  done  is  actually  worth.  But  in  the  latter  case  he  will  not  be 
allowed  to  recover  as  damages  anything  for  speculative  profits,  but 
the  actual  value  of  the  work  and  materials  must  be  the  rule  of  damages. 
He  can  not  assume  the  contract  price  as  the  true  value  of  the  work 
necessary  to  complete  the  whole  job,  and  then  recover  the  proportion 
which  the  work  done  will  bear  to  the  whole  job,  although  it  may  amount 
to  more  than  either  the  contract  price  or  the  actual  value.  This  w^ould 
be  allowing  indirectly  a  recovery  for  speculative  profits  upon  the  com- 
mon counts.  If  the  party  seeks  to  recover  more  than  the  actual  worth 
of  his  work,  in  a  case  where  he  has  been  prevented  from  performing 
the  entire  contract,  he  must  resort  to  his  action  directly  upon  the  con- 
tract; but  w^hen  he  elects  to  consider  the  contract  rescinded,  and  goes 
upon  the  quantum  meruit,  the  actual  value  is  the  rule  of  damages.  The 
injustice  of  any  other  rule  is  very  apparent  in  this  case.  Several  dif- 
ferent kinds  of  work  are  specified  in  the  contract,  and  a  specific  price 
per  yard  attached  to  each.  The  plaintiffs  have  selected  the  rock  ex- 
cavation from  the  different  kinds  of  work  specified,  and  proved  that 
the  part  performed  was  worth  some  three  times  as  much  per  yard  as 
the  part  remaining  unperformed,  and  have  recovered  accordingly;  al- 
though, had  all  the  diflferent  kinds  of  work  specified  in  the  contract 

15  Part  of  the  opinion  is  omitted,  and  the  statement  of  facts  is  rewritten. 


540  DAMAGES   IN   CERTAIN   SPECIFIC  ACTIONS.  (Part    6 

been  taken  into  consideration,  it  is  quite  probable  that  upon  a  general 
average  of  the  work  the  part  performed  would  be  found  no  more  diffi- 
cult than  that  remaining  unperformed.  It  is  at  all  events  quite  clear, 
that  justice  could  not  be  done  without  an  investigation  of  all  the  dif- 
ferent kinds  of  work  specified.  The  contract  is  entire,  and  if  it  be  re- 
sorted to  at  all  as  regulating  the  damages,  it  should  only  be  resorted  to 
in  connection  with  all  the  kinds  of  work  specified  therein. 

This  question  then  arises:  What  rule  did  the  referees  in  fact  adopt? 
The  special  report,  in  giving  their  final  conclusion,  says :  "The  price 
of  the  rock  excavation  was  fixed  at  one  dollar  per  yard,  which  they  have 
been  governed  by,  taking  the  whole  quantity  originally  required  to  be 
excavated;  that  they  have  ascertained  the  relative  value  of  the  whole 
quantity  excavated  and  of  the  quantity  remaining  not  excavated ;  and 
comparing  such  relative  value,  they  find  there  is  due  from  the  defend- 
ants to  the  plaintiffs,  for  the  portion  excavated,  the  sum  of  $46,800." 
Although  this  is  anything  but  a  lucid  statement,  yet  if  it  means  any- 
thing it  must  mean  that  the  referees  neither  allowed  the  actual  value 
of  the  work  performed,  nor  the  price  per  yard  stipulated  in  the  con- 
tract; but  assuming  the  estimated  quantity  as  the  whole  rock  excava- 
tion, they  ascertained  its  aggregate  value  at  one  dollar  per  yard.  They 
then  assumed  that  the  part  performed  was  worth  some  three  times  as 
much  per  yard  as  that  remaining  unperformed,  and  assessed  the  dam- 
ages accordingly,  assuming  the  average  value  of  the  whole  work  at  one 
dollar  per  yard,  making  an  aggregate  of  $150,000.  By  this  means,  it 
will  be  noticed  that  the  plaintiffs  were  enabled  to  recover  for  some 
GG, 000  cubic  yards  of  excavation  nearly  $113,000,  a  much  greater 
sum  than  the  cubic  yards  actually  excavated  would  amount  to,  either 
?.t  one  dollar  per  yard  or  at  the  price  per  yard  which  the  excavation 
was  proved  to  be  worth.  At  the  former  price  the  plaintiffs  had  re- 
ceived the  whole  amount  due,  into  some  $3,483.49,  which  was  conced- 
ed to  be  due ;  and  at  the  highest  prices  proved  for  the  work  done,  there 
would  remain  due  some  $34,088,  a  sum  much  less  than  the  amount 
found  due  by  the  referees.     *     *     *  ^® 


MASTERTON  v.  MAYOR,  ETC.,  OE  CITY  OE  BROOKLYN. 

(Supreme  Court  of  New  York,   1845.     7  Hill,  61,  42  Am.  Dec.  38.) 
See  ante,  p.  241,  for  a  report  of  the  case. 


ROPER  V.  JOHNSON. 

(Court  of  Common  Pleas,  1873.     L.  R.  8  C.  P.  167.) 
See  ante,  p.  320,  for  a  report  of  the  case.^'^ 

16  See,  also,  Thurston's  Cases  on  Quasi  Contracts. 

17  For   the   measure   of   damages   in   similar   actions,    see,    also.   Miller   v. 
Mariner's   Church,  ante,   p.  63 ;    Sullivan  v.   McMillan,   ante,  p.   230 ;   Fail  & 


Ch.  2)  IN    CONTRACTS    RESPECTING    PERSONALTY.  H 11 

SECTION  2.— IN  THOSE  RESPECTING  PERSONALTY. 
I.  BRiiACHES  OF  Warranty. 


HENDRICKSON  v.  BACK. 

(Supreme  Court  of  :Miiniesota,  1898.     74  Minn.  90,   76  N.  W.   1019.) 

Collins,  J.^®  *  *  *  What  is  the  measure  of  damages  where 
there  has  been  a  breach  of  an  impHed  warranty  against  incumbrances 
on  personal  property,  and  the  vendee  has  been  deprived  of  such  prop- 
erty by  an  assertion  of  the  paramount  title  or  right, — in  this  instance, 
by  the  foreclosure  of  a  mortgage?  From  the  order  it  seems  that  the 
charge  to  the  jury  was  that  the  vendee  was  entitled  to  recover  as  dam- 
ages the  value  of  the  property  when  it  was  taken  from  him,  and  dam- 
ages were  awarded  on  this  basis,  and  that  in  passing  upon  the  motion 
the  court  held  its  charge  to  have  been  erroneous,  and  that  it  should 
have  stated  that  the  vendee's  damages  were  the  price  paid  for  the 
chattel. 

Unless  we  are  to  lose  sight  of  the  cardinal  principle  which  governs 
when  estimating  and  awarding  damages  in  civil  actions,  which  is 
simply  compensation  to  the  injured  party,  the  court  was  right  in  its 
charge,  and  wrong  when  it  concluded  that  an  error  had  been  commit- 
ted. It  was  held  in  Close  v.  Crossland,  47  Minn.  500,  50  N.  W.  694, 
in  a  case  involving  this  very  question,  that  the  damages  are  the  actual 
loss,  which  is  the  value  of  the  chattel  purchased.  Of  course,  there 
might  be  circumstances  which  would  affect  any  particular  case.  Un- 
der the  rule  established  by  the  granting  of  the  motion,  the  damages 
actually  sustained  might  be  more  or  might  be  less  than  the  recovery, 
depending  on  the  real  value  of  the  chattel  when  the  paramount  title 
was  asserted  as  against  the  vendee ;  thaj  is,  whether  the  real  value  was 
more  or  less  than  the  price  paid.     *     *     * 

Defendant  purchased  in  1892,  agreeing  to  pay  $75  for  the  harvester 
and  binder  in  question.  He  gave  his  note  for  this  sum  to  his  vendor, 
plaintiff's  intestate,  and  the  note  in  suit  was  given  in  renewal  in  1894. 
The  machine  was  mortgaged,  but  no  claim  for  possession  was  asserted 
until  1895,  and  it  was  then  worth  but  $25.     Defendant  had  the  pos- 

Milos  V.  McRee,  ante,  p.  319;  Brown  v.  Muller,  ante,  p.  322.  note;  Mnssie  v. 
Bnnk,  post,  p.  .^93,  note;  TTnited  States  v.  Behan.  ante,  p.  422;  Allen  v.  McKib- 
liin,  n  Mich.  449  (1858) ;  Smith  v.  Brady,  17  N.  Y.  173,  72  Am.  Dec.  442  (1858) ; 
Doollttle  V.  McCulloutrh,  12  Ohio  St.  360  (1861) ;  Hemminger  v.  W.  A.  C5o., 
95  Mich.  355.  54  N.  W.  949  (1893);  Heine  v.  Meyer,  01  N.  Y.  171  (1874); 
Koon  V.  Greenman,  7  Wend.  (N    Y.)  121  (1831). 

18  Part  of  the  opinion  is  omitted. 


542  DAMAGES   IN   CERTAIN   SPECIFIC  ACTIONS.  (Part    6 

session  and  the  use  for  three  years,  during-  which  time  the  property 
would  materially  decrease  in  value.  His  actual  loss  when  the  para- 
mount title  or  right  was  asserted  was  the  value  of  the  property  when 
taken  away  from  him,  and  his  loss  would  have  been  the  same  if  he 
had  bought  the  machine  for  $10  in  1892.     *     *     * 

In  conclusion,  we  observe  that  the  rule  above  stated  as  the  true 
one  is  in  harmony  with  those  applied  where  there  has  been  a  breach 
of  warranty  of  quality,  or  where  delivery  of  goods  purchased  has 
been  refused.     Order  for  new  trial  affirmed. 


GROSE  et  al.  v.  HENNESSEY  et  al. 
(Supreme   Judicial    Court   of   Massacliusetts,    1SG6.      13   Allen,    389.) 

The  judge  admitted  evidence  of  the  value  of  the  shop,  and  ruled 
that  the  measure  of  damages,  in  case  the  jury  should  find  that  the 
defendants  were  not  the  owners  of  the  shop,  would  be  the  difference 
in  value  between  such  title  as  the  plaintiffs  took  and  such  title  as  the 
defendants  covenanted  that  they  had  conveyed.^® 

Hoar,  J.^"  *  *  *  Upon  the  finding  of  the  jury  it  appears  that 
the  defendants  sold  as  a  chattel  a  building  to  which  they  had  no  title, 
because  it  was  a  part  of  the  realty.  By  the  same  instrument  they  trans- 
ferred a  lease  of  the  premises  of  which  the  building  formed  a  part, 
and  the  plaintiffs  had  the  possession  of  the  building  under  the  lease. 
But  by  the  sale  of  it  as  a  chattel  no  title  passed.  In  every  sale  of  per- 
sonal property  there  is  an  implied  warranty  of  title.  Here  there  was 
an  express  warranty.  The  rule  of  damages  was  certainly  sufficiently 
favorable  to  the  defendants.  The  difference  in  value  betw^een  that 
which  the  defendants  did  convey,  and  that  which  they  covenanted  that 
they  conveyed,  would  be  the  exact  measure  of  the  plaintiffs'  loss  by  the 
breach  of  the  covenant.  The  rules  which  belong  to  the  covenants  of 
seisin  and  warranty  in  conveyances  of  real  property  have  no  applica- 
tion.    *     *     * 

LODER  V.  KEKULE. 

(Court  of  Common  Pleas,  1857.    3  C.  B.  [N.  S.]  128.) 
Williams,  J.^^     *     *     *     ^^-^^  ^^,^5  ^^  action  brought  to  recover 
damages  for  the  breach  of  two  contracts  for  the  sale  of  one  hundred 
casks  of  tallow  each,  by  the  delivery  of  an  article  inferior  in  quality  to 
that  which  was  sold. 

The  tallow  arrived  by  the  ship  Emilie  in  London,  where  the  plain- 
tiff and  defendant  resided,  on  the  12th  of  January,  1856.  The  unload- 
ing of  the  cargo  commenced  on  the  16th,  and  was  finished  on  the 
25th,  of  January.     As  soon  as  the  plaintiff  had  inspected  the  tallow 

19  This  statement  is  abridged  from  that  of  the  official  report. 

20  Part  of  the  opinion  is  omitted.  21  Part  of   the  opinion   is  omitted. 


Ch.  2)  IN    CONTRACTS    RESPECTING    PERSONALTY.  543 

offered  for  delivery,  he  objected  to  the  quality,  as  not  fulfilling  the 
terms  of  the  contract,  in  a  letter  dated  the  28th  of  January ;  and  there- 
upon a  correspondence  began  between  him  and  the  defendant,  which 
continued  until  the  12th  of  March,  when  a  resale  took  place  by  order 
of  the  plaintiff. 

The  price  of  the  tallow  had  been  paid  in  advance ;  and  this  action 
was  brought  to  recover  the  difference  between  the  contract  price  so 
paid  and  the  amount  realized  by  the  resale. 

The  defendant  had  paid  a  sum  of  £234.  into  court. 

The  market  price  of  tallow  had  fallen  considerably  on  the  ITth  of 
January,  and  continued  to  decline  until  the  resale  on  the  12th  of  March. 

At  the  trial,  before  my  Brother  Willes,  there  was  no  dispute  as  to 
the  breach  of  the  contract,  by  delivering  tallow  of  an  inferior  quality ; 
but  it  was  contended  by  the  defendant,  without  taking  any  objection  to 
the  form  of  the  declaration,  that  the  sum  paid  into  court  was  suffi- 
cient to  cover  the  damages  sustained :  and  this  depended  on  the  prin- 
ciple on  which  the  damages  ought  to  be  estimated. 

The  learned  judge  left  it  to  the  jury  to  say  whether  the  plaintiff  had 
accepted  the  tallow  as  a  delivery  under  the  contract:  and,  the  jury 
having  found  in  the  negative,  the  damages  were  assessed  at  a  sum  far 
exceeding  that  which  had  been  paid  into  court,  but  far  less  than  the 
difference  between  the  contract  price  prepaid  by  the  plaintiff,  and  the 
sum  for  which  the  tallows  were  resold.  The  jury  further  found  that  the 
plaintiff  resold  the  tallow  as  soon  as  he  reasonably  could,  and  that  it 
was  properly  sold. 

The  learned  judge  reserved  leave  to  the  defendant  to  move  to  enter  a 
verdict  for  him,  if  upon  the  facts  proved  at  the  trial,  it  should  appear 
to  the  court  that  the  defendant  had  paid  in  a  sum  sufficient  to  cover  the 
damages  legally  sustained  by  the  plaintiff.     *     *     * 

We  think  that  the  prepayment  cannot  be  taken  into  consideration 
in  apportioning  the  damages;  and  that  the  true  measure  of  damages 
would  have  been,  if  there  had  been  nothing  else  in  the  case,  the  differ- 
ence between  the  value  of  tallow  of  the  quality  contracted  for,  at  the 
time  of  the  delivery,  and  the  value  of  the  tallow  actually  delivered. 
This,  however,  is  on  the  assumption  that  the  tallow  delivered  could  be 
immediately  resold  in  the  market.  But,  as  in  the  present  case  it  appears 
clearly  from  the  correspondence  that  the  defendant  by  his  conduct  de- 
layed the  resale:  and,  as  the  jury  have  found,  we  think,  correctly,  that 
the  resale  on  the  12th  of  March  was  in  a  reasonable  time,  we  are  of 
opinion  that  the  proper  measure  of  damages  is  the  difference  between 
the  value  in  the  market  of  tallow  of  the  quality  contracted  for  on  the 
25th  of  January,  and  the  amount  made  by  the  resale  of  the  tallow 
actually  delivered.     *     *     *  ^^ 

22  See,  also,  Jones  v.  Just,  L.  R.  3  Q.  B.  197  (1868);  Caswell  v.  Coare,  1 
Taunt.  5C)6  (1809) ;  Dingle  v.  J^are,  7  C.  B.  (N.  S.)  145  (1859) ;  Clare  v. 
Mayuard,  6  Adol.  &  E.  519  (1837) ;  Lewis  v.  Peake,  7  Taunt.  153  (1816) ; 
Wr'ightup  V.  Chamberlain,  7  Scott,  598  (1839). 


544  DAMAGES   IN   CERTAIN   SPECIFIC  ACTIONS.  (Part    6 

GARY  V.  GRUMAN. 
(Supreme  Court  of  New  York,  1843.     4  Hill,  625,  40  Am.  Dec.  299.)    . 

The  price  paid  for  the  horse  was  $90,  and  the  breach  complained  of 
was  a  disease  in  the  horse's  eyes.  On  the  trial  in  the  common  pleas,  aft- 
er Gruman,  the  plaintiff  had  given  evidence  tending  to  prove  the  war- 
ranty and  the  disease,  the  defendant,  in  the  course  of  cross-examining 
one  of  plaintiff's  witnesses,  enquired  what  the  horse  would  have  been 
worth  at  the  time  of  the  sale,  if  he  had  been  sound;  declaring  that  one 
object  of  the  question  was,  to  show  the  amount  of  the  plaintiff's  dam- 
ages, if  entitled  to  any,  under  the  following  rule,  which  he  contended  to 
be  the  true  one,  viz.  "that  the  proper  measure  of  damages  was  the  dif- 
ference between  the  real  value  of  the  horse  if  sound,  and  his  real 
value  with  the  defect  complained  of."  The  court,  though  they  receiv- 
ed the  answer  for  another  purpose,  overruled  it  for  the  purpose  propos- 
ed as  above,  holding  the  true  measure  of  damages  to  be,  the  difference 
between  the  price  paid,  and  the  value  with  the  defects.^* 

CowEN,  J,^*  *  *  *  /^  warranty  on  the  sale  of  a  chattel  is,  in 
legal  effect,  a  promise  that  the  subject  of  sale  corresponds  with  the 
warranty,  in  title,  soundness  or  other  quality  to  which  it  relates ;  and 
is  always  so  stated  in  the  declaration  when  this  is  technically  framed. 
It  naturally  follows  that  if  the  subject  prove  defective  within  the 
meaning  of  the  warranty,  the  stipulation  can  be  satisfied  in  no  other 
way  than  by  making  it  good.  That  cannot  be  done  except  by  paying 
to  the  vendee  such  sum  as,  together  with  the  cash  value  of  the  defect- 
ive article,  shall  amount  to  what  it  would  have  been  worth  if  the  de- 
fect had  not  existed.  There  is  no  right  in  the  vendee  to  return  the  ar- 
ticle and  recover  the  price  paid,  unless  there  be  fraud,  or  an  express 
agreement  for  a  return.  Voorhees  v.  Earl,  2  Hill,  288,  38  Am.  Dec. 
588.  Nor  does  it  add  to  or  detract  any  from  the  force  or  compass 
of  the  stipulation  that  the  vendee  may  have  paid  a  greater  or  less 
price.  The  very  highest  or  the  very  lowest  and  most  trifling  consid- 
eration is  sufficient.  A  promise,  in  consideration  of  $1,  that  a  horse 
which,  if  sound,  would  be  worth  $100,  is  so,  will  oblige  the  promisor 
to  pay  $100  if  the  horse  shall  prove  totally  worthless  by  reason  of  un- 
soundness, and  $50  if  his  real  value  be  less  by  half,  and  so  in  propor- 
tion. Nor  could  the  claim  be  enhanced  by  reason  that  the  vendee  had 
paid  $1,000. 

The  rule  undoubtedly  is,  that  the  agreed  price  is  strong  evidence  of 
the  actual  value ;  and  this  should  never  be  departed  from,  unless  it  be 
clear  that  such  value  was  more  or  less  than  the  sum  at  which  the  par- 
ties fixed  it.  It  is  sometimes  the  value  of  the  article  as  between  them, 
rather  than  its  general  worth,  that  is  primarily  ito  be  looked  to — a  value 
which  very  likely  depended  on  considerations  which  they  alone  could 

23  This  statement  is  abridged  from  that  of  the  official  report. 

24  Part  of  the  opinion  is  omitted. 


Ch.  2)  IN    CONTRACTS    RESPECTING   PERSONALTY. 

appreciate.  Things  are,  however,  very  often  purchased  on  account  of 
their  cheapness.  In  the  common  language  of  vendors,  they  are  offer- 
ed at  a  great  bargain,  and  when  taken  at  that  offer  on  a  warranty,  it 
would  be  contrary  to  the  express  intention  of  the  parties,  and  perhaps 
defeat  the  warranty  altogether,  should  the  price  be  made  the  inflexible 
standard  of  value.  A  man  sells  a  bin  of  wheat  at  50  cents  per  bushel, 
warranted  to  be  of  good  quality.  It  is _  worth  ?1  if  the  warranty  be 
true  •  but  it  turns  out  to  be  so  foul  that  it  is  worth  no  more  than  7d  cents 
per  bushel.  The  purchaser  is  as  much  entitled  to  his  25  cents  per 
bushel  in  damages  as  he  would  have  been  by  paying  his  dollar  and  f 
he  had  given  $3  per  bushel  he  could  recover  no  more.  So,  a  horse 
six  vears  old  is  sold  for  $50  with  warranty  of  soundness.  If  sound,  he 
would  be  worth  $100.  He  wants  eyesight,  and  thus  his  real  value  is 
reduced  one-half.  The  vendee  is  entitled  Jo  $50^  as  damages;  and 
could  recover  no  more  had  he  paid  $200,     *     *     *  ,    .u      .i  ^ 

It  is  impossible  to  say,  nor  have  we  the  right  to  enquire,  whether  the 
real  value  of  the  horse  in  question,  supposing  him  to  have  been  sold, 
would  have  turned  out  to  be  more  or  less  than  the  $90  paid.  Suppose 
the  jury  thought,  with  one  witness  whom  the  court  allowed  to  state 
such  value  for  another  purpose,  that  it  was  not  more  than  $bO ;  the 
plaintiff  then  recovered  $10,  not  on  account  of  the  defect,  but  because 
he  had  been  deficient  in  care  or  sound  judgment  as  a  purchaser  On  the 
other  hand,  had  the  horse  been  actually  worth  $100,  the  defendant 
would  have  been  relieved  from  the  payment  of  the  $10  because  he  had 
made  a  mistake  of  value  against  himself.  The  cause  might  thus  have 
turned  on  a  question  entirely  collateral  to  the  truth  of  the  warran- 


ty- 
Reversed.^' 


PARK  et  al.  v.   RICHARDSON   &  BOYNTON   CO. 

(Supreme  Court  of  Wisconsin,  1895.     91  Wis.   189,  64  N.  W.   859.) 

The  plaintiffs  bought  of  the  defendant  a  furnace  for  heating  their 

buildincr     The  furnace  was  warranted  to  work  satisfactorily.  _  It  did 

not  work  satisfactorilv.     The  court  instructed  the  jury  that,  m  case 

they  found  for  the  plaintiffs,  "the  plaintiffs  will  be  entitled  to  recover 

25  The  weisht  of  authority  is  with  Gary  v  Grunian  ante,  p.  544;  Pitsinow- 
sky  V.  Beardsley.  Hill  &  Co..  ,37  Iowa  9  (18^3)  =  Rutan  v.  Lufjm  9  ^.  X 
T  iw  30S  aS(\'>)  ■  Alerrick  v.  Wiltse,  37  Minn.  41,  33  ^.  A\ .  3.  But  cases  fire  iiui 
^cJing  wherein  the  n.easure  of  damages  has  been  asserted  to  be  the  differ- 
ence between  the  price  paid  and  the  actual  value.  Crabtree  v.  Kile,  21  IlL 
SdlS) ;  Courtu^ey  v.  Boswell.  65  Mo.  19G  (1877):  Crittenden  v.  Posey,  38 
Tenn,  311  (18.58).     And  see  cases  herein  on  the  subject  of    Deceit. 

See  also.  Stiles  v.  White,  ante.  p.  521 ;  Peek  v.  Derry  ante.  p.  521 ,  White 
V.  MiUer.  ante.  pp.  269,  409 ;  Foster  v.  Rogers,  ante,  p.  33J. 

See,  also,  Terry's  Cases  on   Contracts. 
Gilb.Dam.— 35 


546  DAMAGES   IN   CERTAIN   SPECIFIC   ACTIONS.  (Part    6 

the  difference  between  the  purchase  price  of  the   furnace     *     *     * 
and  its  actual  value."^^ 

Newman,  J.^^  When  this  case  was  here  before  (81  Wis.  399,  51  N. 
W.  572),  it  was  said  that  the  proper  rule  of  damages  for  breach  of  the 
warranty  of  the  furnace  would  be  "the  difference  between  its  actual 
value  and  its  value  had  it  conformed  with  the  warranty."  This  is  un- 
doubtedly the  true  rule.  Suth.  Dam.  (3d  Ed.)  §  670;  Morse  v.  Hutch- 
ins,  102  Mass.  440.  The  rule  stated  by  the  trial  court  is  not  the  equiv- 
alent of  the  true  rule.  The  rule  of  the  trial  court  deprives  the  pur- 
chaser of  the  profit  of  his  bargain,  if  he  has  made  a  good  one,  and  gives 
him  an  undue  advantage,  if  he  has  made  a  bad  one.  The  furnace  may 
have  been  either  cheap  or  dear,  at  the  price  paid,  even  if  it  had  con- 
formed to  the  warranty.  If  it  was  a  bad  bargain,  aside  from  the  de- 
fects complained  of,  the  plaintiffs'  damages  are  less  than  if  it  had  been 
a  good  bargain.  This  consideration  is  an  element  in  the  rule  of  dam- 
ages. The  question  of  the  value  of  the  furnace,  if  it  had  conformed  to 
the  warranty,  should  have  been  left  to  the  jury,  as  well  as  the  question 
of  its  actual  value.     *     *     * 


THOMS   et   al.  v.   DINGLEY  et  al. 
(Supreme  Judicial   Court  of   Maine,   1879.     70  Me.   100,   35   Am.   Rep.   310.) 

Pe;te;rs,  J.^*  The  defendants,  manufacturers  and  vendors  of  car- 
riage springs,  sold  to  the  plaintiffs,  carriage  builders,  six  carriage 
springs,  knowing  that  the  plaintiffs  were  to  use  them  in  the  construc- 
tion of  carriages,  and  warranted  them  as  made  of  the  best  of  steel. 
They  turned  out  to  be  of  poor  material,  and  unfit  for  the  purpose  for 
which  they  were  intended  and  used.  In  this  action  on  the  warranty, 
the  plaintiffs  claim  to  recover,  having  declared  therefor  specially,  the 
expenses  to  them  of  taking  out  of  the  carriages  into  which  they  were 
placed  some  of  the  defective  springs  and  fitting  new  ones  in  place  of 
them. 

The  common  doctrine  applicable  to  all  cases  is  that  the  damages  shall 
be  the  natural  and  proximate  consequence  of  the  act  complained  of. 
They  are  general  damages  when  the  necessary  and  natural  conse- 
quence. If  they  are  the  natural  but  not  the  necessary  consequence  of 
the  act  complained  of,  then  they  are  special  damages,  and  must  be 
specially  set  forth  in  the  declaration.  Furlong  v.  Polleys,  30  Me.  491, 
1  Am.  Rep.  635.     *     *     * 

Ordinarily,  the  measure  of  damages  applying  to  warranty  of  per- 
sonal property  is  the  difference  between  the  actual  value  of  the  articles 
sold  and  what  they  would  have  been  worth  if  as  warranted.  Wright 
V.  Roach,  57  Me.  600.  But  this  is  not  an  invariable  standard.  It  is 
not  always  adequate  to  produce  just  results.     There  are  cases  where 

2«  This  statement  is  abridged  from  that  of  the  official  report. 

27  Part  of  the  opinion  is  omitted.  28  ParC  of  the  opinion  is  omitted. 


Ch.  2)  IN    CONTRACTS    RESPECTING    PERSONALTY.  547 

more  extended  damages  are  recoverable  for  special  or  consequential 
or  exceptional  losses.     *     *     * 

Upon  the  principle  laid  down  in  Hadley  v.  Baxendale,  9  Exch.  353, 
it  is  in  many  cases,  and  we  think  correctly,  held  that  where  manufactur- 
ed articles  are  ordered  for  a  special  purpose  known  to  the  seller,  there 
is  an  implied  warranty  that  they  are  reasonably  fit  and  suitable  for  the 
purpose  for  which  they  are  ordered,  and  the  vendee  may  recover  for 
the  breach  of  warranty  such  damages  as  may  be  reasonably  supposed 
to  have  been  in  the  minds  of  the  parties  in  respect  to  jt.  *  *  *  So 
in  the  present  case  the  warranty  that  the  articles  were  of  sound  steel 
must,  under  the  circumstances,  bear  the  construction  that  the  parties 
intended  a  warranty  that  they  were  suitable  and  fit  for  the  particular 
use  for  which  they  were  ordered  and  sold.  The  defendants  knew,  or 
assumed  to  know,  of  what  quality  of  material  the  articles  were  con- 
structed, and  by  their  warranty  relieved  the  plaintiffs  from  the  neces- 
sity of  personal  inspection  and  risk.     *     *     * 

In  this  case  we  think  it  not  unreasonable  to  allow  the  actual  cost  of 
replacing-  the  carriage  springs.     *     *     *  ^® 


11.  Failure  to  Supply  Goods  or  to  Receive  Samk. 

GAINSFORD  v.  CARROLL. 

(Court  of  King's  Bench.  1824.     2  Barn.  &  C.  624.) 

Assumpsit  for  the  non-performance  of  three  contracts  entered  into 
by  the  defendants  with  the  plaintiff  for  the  sale  of  fifty  bales  of  bacon, 
to  be  shipped  by  them  from  Waterford,  in  the  months  of  January, 
February,  and  March,  1823,  respectively.  The  defendant  suffered 
judgment  by  default,  and,  upon  the  execution  of  the  writ  of  inquiry  in 
London,  the  secondary  told  the  jury  that  they  were  at  liberty  to  calcu- 
late the  damages  according  to  the  price  of  bacon  on  the  day  when  the 
inquiry  was  executed,  and  that  the  difference  between  that  and  the  con- 
tract price  ought  to  be  the  measure  of  damages.  Parke  had  obtained 
a  rule  nisi  for  setting  aside  the  inquiry  on  the  ground  that  the  plaintiff 
was  only  entitled  to  recover  the  dift'erence  between  the  contract  price 
and  the  price  which  the  article  bore  at  or  about  the  time  when,  by  the 
terms  of  the  contract,  it  ought  to  have  been  delivered.  He  cited  Leigh 
v.  Paterson,  8  Taunt.  540,  in  which  the  Court  of  Common  Pleas  inti- 
mated an  opinion  that  the  damages  should  be  calculated  according  to 
the  price  of  the  day  on  which  the  contract  ought  to  have  been  perform- 
ed. This  is  different  from  the  case  of  a  loan  of  stock ;  there  the  lend- 
er, by  the  transfer  deprives  himself  of  the  means  of  replacing  the  stock, 

20  See  Shaw  v.  Smith.  45  Kan.  334;  25  Pac.  8SG.  11  L.  R.  A.  GSl  (1891); 
Beenian  v.  Banta.  118  N.  T.  .^>.3S.  23  N.  E.  887.  16  Am.  St.  liep.  779  (1890); 
Reese  v.  Miles,  99  Tenn.  398,  41  S.  W.  lOGo  (1897). 


54S  DAMAGFS   IN  CERTAIN  SPECIFIC  ACTIONS.  (Part    6 

he  has  not  the  money  to  go  to  market  with  but  in  the  case  of  a  purchase 
of  goods,  the  vendee  is  in  possession  of  his  money,  and  he  has  it  in  his 
power,  as  soon  as  the  vendor  has  failed  in  the  performance  of  the  con- 
tract, to  purchase  other  goods  of  the  hke  quality  and  description,  and 
it  is  his  own  fault  if  he  does  not  do  so. 

Wilde,  contra,  contended  that  the  rule  which  had  been  laid  down,  as 
to  the  measure  of  damages,  for  not  replacing  stock,  appUed  to  the  pres- 
ent, and  he  cited  Stevens  v.  Johnson,  2  East,  211,  and  McArthur  v. 
Lord  Seaforth,  2  Taunt.  257. 

Per  Curiam.  Those  cases  do  not  apply  to  the  present.  In  the  case 
of  a  loan  of  stock  the  borrower  holds  in  his  hands  the  money  of  the 
lender,  and  thereby  prevents  him  from  using  it  altogether.  Here  the 
plaintiff  had  his  money  in  his  possession  and  he  might  have  purchased 
other  bacon  of  the  like  quality  tlie  very  day  after  the  contract  was  brok- 
en, and  if  he  has  sustained  any  loss,  by  neglecting  to  do  so,  it  is  his  own 
fault.  We  think  that  the  under  sheriff  ought  to  have  told  the  jury  that 
the  damages  should  be  calculated  according  to  the  price  of  the  bacon 
at  or  about  the  day  when  the  goods  ought  to  have  been  delivered. 

Rule  absolute. 


JOSLING  v.  IRVINE. 

(Court  of   Exchequer,    1861.     6   Hurl.   &   N.   512.) 

Action  against  vendor  for  failure  to  deliver  3,000  gallons  of  naphtha. 
Verdict  for  £537.  10s. 

Martin,  B.^**  *  *  *  q^j^g  facts,  as  I  understand  them,  are  that 
the  plaintiff,  on  the  the  26th  July,  purchased  of  the  defendant,  by 
sample,  3,000  gallons  of  naptha,  at  2s.  2d.  a  gallon,  which  the  plain- 
tiff sold  on  the  27th,  also  by  sample,  to  Hoile  &  Co.,  for  2s.  6d.  There 
was  therefore  an  increase  on  the  market  price.  When  the  naphtha  was 
analyzed,  it  was  found  to  contain  73  per  cent,  of  benzol.  The  plaintiff 
said  to  the  defendant,  "If  you  had  delivered  the  naphtha,  it  would  have 
been  found  to  contain  that  amount  of  benzol,  and  therefore  would  have 
been  worth  5s.  6d."  The  real  transaction  was,  that  the  defendant  sold 
an  article  which  was  of  greater  value  than  any  of  the  parties  were  aware 
of  at  the  time  of  the  sale.  The  plaintiff  could  not  complete  his  con- 
tract with  Hoile  &  Co.  except  by  purchasing  naphtha  at  this  enhanced 
price,  and  that  is  an  expense  which  he  incurred  by  the  defendant's  de- 
fault. Upon,  these  facts,  I  think  that  the  case  of  Randall  v.  Raper, 
E.  B.  &  E.  (96  E.  C.  L.  R.)  84,  is  decisive  to  show  that  the  damage 
which  the  plaintiff  is  liable  to  pay  to  the  subpurchaser  may  be  taken 
into  consideration.     *     *     * 

Bramwell,  B.  *  *  *  When  a  person  has  bought  an  article, 
and  the  seller  does  not  deliver  it,  if  the  buyer  can  go  into  the  market 

3  0  Only  parts  of  the  opinions  of  Martin  and  Bramwell,  BB.,  are  here  re- 
printed. 


Ch.  2)  IN    CONTRACTS    RESPECTING    TEKSONALTY.  549 

and  get  it  elsewhere,  the  difference  between  the  two  prices,  if  any,  is 
the  measure  of  damage.  The  buyer  need  not  go  into  the  market  the 
next  day,  but  is  entitled  to  the  difference  in  price  at  the  time  when  he 
might  reasonably  procure  the  article.  Here  it  was  proved  that  the 
plaintiff  could  not  have  bought  naphtha  of  the  same  quality  as  that 
contracted  to  be  sold  except  at  an  increase  of  price  equal  to  the  dam- 
ages claimed.  If  one  man  has  the  sagacity  to  discover  the  value  of  an 
article  which  another  possesses,  and  buys  it,  he  is  entitled  to  the  benefit 
of  his  bargain.  To  hold  that  the  buyer  is  bound  to  tell  the  seller  the 
value  would  be  to  establish  a  rule  for  the  benefit  of  the  idle  and  ig- 
norant. Randall  v.  Raper,  E.  B.  &  E.  84  (E.  C.  L.  R.  vol.  96),  is  dis- 
tinguishable from  the  present  case.  There  the, seller,  by  delivering 
barley  not  according  to  contract,  the  defect  in  which  could  not  be  dis- 
covered till  the  barley  was  delivered,  deprived  the  buyer  of  the  op- 
portunity of  going  into  the  market  and  getting  other  barley.  *  *  * 
Rule  for  new  inquiry  refused.*^ 


BERKEY  &  GAY  FURNITURE  CO.  v.  HASCALL. 

(Supreme  Court  of  Indiana,  1890.     123  Ind.  502,  24  N.  E.  336,  8  L.  R.  A.  Go.) 

Olds,  J.^^  *  *  *  The  facts  found  by  the  jury  show  that  the 
appellee,  at  and  just  prior  to  August  26,  1881,  had  reconstructed  and 
built  his  hotel  building  in  the  city  of  Goshen,  Ind.,  at  a  cost  of  $40,000. 
that  appellee  was  proprietor  and  manager  thereof,  and  had  within  said 
hotel  30  rooms  that  were  unfurnished,  and  when  so  unfurnished  were 
of  no  use  or  value  to  the  appellee;  that  upon  said  day  he  contracted 
with  the  appellant  to  sell  and  deliver  to  him  *  *  *  the  necessary 
furniture  to  furnish  said  rooms,  *  *  *  agreed  to  deliver  the  same, 
and  set  the  same  up  in  appellee's  hotel,  and  have  the  same  ready  for 
use  in  said  hotel  by  or  on  the  15th  day  of  September,  1881 ;  that  the 
appellant,  at  the  time  of  the  making  of  said  contract,  knew  the  pur- 
pose for  which  said  furniture  was  to  be  used.  *  *  *  From  these 
facts  it  necessarily  follows,  as  a  conclusion,  that  the  party  contract- 
ing to  furnish  the  same  knew  that  the  rooms  were  valueless  as  hotel 
apartments  when  unfurnished;  that  the  furniture  was  necessary  to 
enable  the  purchaser  to  use  and  occupy  the  same,  and  operate  his  hotel ; 
and  that  the  appellee  would  be  deprived  of  the  use  of  such  rooms  for 
such  purpose  until  it  complied  with  its  contract. 

The  facts  found  further  show  that  the  appellant  commenced  furnish- 
ing the  furniture  soon  after  the  date  when  it  was  all  to  have  been 
furnished  and  put  up  in  the  rooms,  furnishing  part  at  one  time  and 
part  at  an  other.     The  facts  show  the  appellee  had  reconstructed  and 

81  And  on  jreneral  rule  in  an  action  by  vendee  ag:ainst  the  vendor,  see  Shaw 
V.  Holland.  15  IMecs.  &  W.  13G  (1840);  Van  Diemen's  Land  Co.  v.  Cockerell, 
I  C.  B.  (N.  S.)  732  (1857). 

3  2  Part  of  the  opinion  is  omitted. 


550  DAMAGES   IN  CERTAIN   SrECIFIC  ACTIONS.  (Part    6 

rebuilt  a  valuable  hotel,  and  was  operating  it  himself,  and  the  dam- 
ages naturally  resulting  from  the  breach  of  the  contract,  according  to 
the  facts  found,  were  what  the  rooms  would  have  been  worth  to  ap- 
pellee furnished  according  to  the  contract  more  than  they  were  worth 
to  him  unfurnished,  during  the  delay  in  complying  with  the  contract. 
Appellee  built  the  house  for  a  particular  purpose,  and  was  having  it 
furnished  for  such  purpose.  He  was  not  bound  to  rent  out  the  rooms 
for  another  purpose,  even  if  he  could  have  done  so.  If  there  had  been 
a  breach  and  a  total  failure  of  the  appellant  to  have  furnished  the 
whole  or  any  part  of  the  furniture,  and  the  appellee  had  been  notified 
that  he  was  not  intending  to  furnish  it,  then  the  appellant  would  have 
been  liable  for  the  difference  in  value  of  the  furniture  between  its 
price  in  the  open  market  and  the  contract  price,  as  well  as  the  loss  of 
the  use  of  the  rooms  for  the  time  necessary  to  have  procured  the 
furniture  elsewhere;  but  in  this  case  the  appellant  furnished  the  fur- 
niture, and  appellee  accepted  it,  so  that  the  damage  was  the  loss  sus- 
tained by  reason  of  the  delay. 

We  think  the  loss  of  the  use  of  the  rooms  as  they  were  to  be  fur- 
nished might  fairly  be  considered  to  have  been  contemplated  by  the 
parties  at  the  time  of  the  making  of  the  contract.  In  Richardson  v. 
Chynoweth,  26  Wis.  656,  it  was  held  that  a  defendant  failing  to  de- 
liver an  article,  knowing  the  purpose  for  which  it  was  purchased,  was 
liable  for  the  profits  the  purchaser  would  have  made.     *     *     * 

The  amount  of  damage  that  the  appellee  was  entitled  to  recover 
was  the  difference  in  value  to  the  appellee  in  the  rooms,  furnished  and 
■unfurnished,  for  the  time  they  remained  unfurnished  by  reason  of  ap- 
pellant's failure  to  furnish  the  furniture ;  and  that  amount  is  deter- 
mined by  finding  what  the  rooms  were  worth  to  the  appellee  unfur- 
nished, and  what  they  were  worth  furnished,  for  the  time  he  was  de- 
prived of  the  use  of  them  for  the  purpose  for  which  they  were  to  be 
used.  The  jury  has  found  as  facts  that  the  use  of  the  rooms  unfur- 
nished was  worth  nothing  to  the  appellee  during  that  time,  and  fur- 
nish.ed  they  would  have  been  worth  75  cents  per  day,  and  the  num- 
■ber  of  days  each  room  was  unfurnished  from  the  date  appellant  con- 
tracted to  set  up  the  furniture  in  the  rooms  is  also  stated  and  found 
in  the  verdict,  and  the  gross  amount  may  be  determined  by  a  mere 
computation.     *     *     * 


CLARK  V.   PINNEY. 

(Sxipreme  Court  of  New  York,  1827.     7  Cow.  681.) 
See  ante,  p.  357,  for  a  report  of  the  case. 


Ch.  2)  IN    CONTRACTS    RESPECTING    PERSONALTY.  551 

MARSH  V.  Mcpherson. 

(Supreme  Court  of  the  United  States,  1881.     105  U.  S.  709.  2G  L.  Ed.  1139.) 

McPherson  agreed  to  convey  certain  Nebraska  real  estate  and  one- 
half  the  stock  of  goods  in  a  store  belonging  to  him  in  exchange  for  a 
large  number  of  farm  machines,  reapers,  mowers,  and  self-rakers,  at 
a  certain  valuation,  and  for  certain  notes  and  cash.  The  defendant 
failed  to  deliver  the  machines  in  accordance  with  the  contract,  al- 
though the  plaintiff  had  performed,  failing  to  deliver  some  of  the  ma- 
chines and  delivering  others  in  different  condition  than  that  agreed 

upon. 

Matthews,  J.''  *  *  *  jn  its  general  charge,  the  court  stated 
the  rule  of  damages  very  clearly  and  correctly,  in  the  following  lan- 
guage: "The  extent  of  the  damages  in  this  case  will  be  the  difference 
that'^it  would  cost  to  put  the  machines  in  good  condition,  so  as  to  com- 
ply with  the  contract,  and  also  the  value  of  those  that  were  not  then  at 
the  time  and  place  stated  in  the  contract."  Standing  alone,  this  in- 
struction would  have  been  unexceptionable.  But  in  the  rulings  noted 
above,  in  giving  the  tenth  and  eleventh  instructions,  asked  by  the  plain- 
tiff, and  refusing  to  give  that  asked  by  the  defendants,  and  in  reject- 
ing the  evidence  offered  on  the  point,  there  was  substantial  error. 

The  price  fixed  in  the  contract,  at  which  the  plaintiff  agreed  to  take 
the  machines,  whether  the  transaction  is  viewed  as  an  exchange  of 
property,  at  assumed  valuations,  or  as  a  purchase  and  sale  for  money, 
is  not  conclusive,  between  the  parties,  upon  the  question  of  damages, 
recoverable  for  a  breach.  If  there  had  been  a  total  failure  on  the 
part  of  the  defendants  to  comply  with  the  contract,  and  they  had  re- 
fused to  deliver  any  of  the  machines  specified,  the  damages  to  the 
plaintiff  would  have  been  the  amount  of  money  with  which,  at  the  time 
of  the  breach,  he  could  have  supplied  himself  by  purchase  from  others, 
with  the  same  number  of  similar  articles  of  equal  value.  If  the 
market  price  had  in  the  meantime  advanced,  the  recovery  would  be 
for  more,  or  if  it  had  fallen,  it  would  be  for  less,  than  the  contract 
price ;  the  rule  to  measure  the  loss,  in  such  cases,  being  the  difference 
between  the  contract  and  the  market  price.  The  same  rule  applies 
where  the  breach  is  partial  and  not  total ;  and  to  make  good  the  war- 
ranty as  to  condition,  the  cost  of  repairs;  and,  as  to  freedom  from 
Hens,  the  cost  of  removing  them,  if  that  be  the  difference  in  actual 
value,  between  the  article  as  warranted  and  the  article  as  delivered,  is 
all  that  can  be  properly  recovered  as  damages,  unless  in  exceptional 
cases  of  special  damage.  Whatever  that  difference,  in  the  actual  cir- 
cumstances of  the  case,  is  shown  to  be,  is  the  true  rule  and  measure  of 
damages.    Where  the  articles  delivered  are  not  what  the  contract  calls 

83  Part  of  the  opinion  is  omitted. 


552  DAMAGES   IN   CERTAIN   SPECIFIC  ACTIONS.  (Part    6 

for,  as  in  the  case  of  defective  machines,  the  measure  of  the  vendee's 
damages  is  what  it  would  cost  to  supply  the  deficiency,  without  regard 
to  the  contract  price.    *     *    *  ** 


TUFTS  V.  BENNETT. 
(Supreme  Judicial  Court  of  Massachusetts,  1895.    163  Mass.  398,  40  N.  E.  172.) 

Morton,  J.^*^  Action  by  James  W.  Tufts  against  John  E.  Bennett, 
based  on  a  contract  of  sale  of  soda-water  apparatus  and  machin- 
gj.y_  *  *  *  p^j.|.  q£  ^j^g  goods  ordered  were  kept  in  stock  by  the 
plaintiff,  part  were  to  be  manufactured  by  him,  part  to  be  purchased 
elsewhere,  and  some  labor  and  stock  were  to  be  expended  in  renovating 
certain  apparatus  for  the  defendant.     *     *     * 

According  to  the  contract  the  defendant,  upon  delivery,  was  to 
honor  a  sight  draft  for  $J:00,  and  to  execute  to  the  plaintiff  notes  for 
the  balance,  and  the  title  to  the  goods  was  to  remain  in  the  plaintiff 
till  the  notes  were  paid.  The  defendant  has  never  honored  any  draft 
nor  executed  any  notes,  and  the  action  is  brought  for  the  breach  of  his 
agreement  in  failing  to  do  so.  The  court  found  that  the  defendant 
had  repudiated  the  contract.  The  rule  seems  to  be  pretty  clearly  es- 
tablished that  the  measure  of  damages  in  such  a  case  is  the  difference 
between  the  market  value  of  the  goods  at  the  time  and  place  of  de- 
livery and  the  market  price.     *     *     * 

No  evidence,  however,  was  introduced  by  the  plaintiff  as  to  such 
difference,  he  relying  apparently  upon  his  contention  that  the  measure 
of  damages  was  the  contract  price.  The  only  thing,  therefore,  which 
the  court  could  do,  was  to  award  nominal  damages,  which  it  did. 


SHAWHAN  V.  VAN   NEST. 

(Supreme  Court  of  Ohio,  1874.     25  Ohio  St.  490,  18  Am.  Rep.  313.) 

Action  by  Peter  Van  Nest  against  Reasin  W.  Shawhan  to  recover 
on  a  contract  by  which  he  agreed  to  make  for  Shawhan  a  carriage  in 
accordance  with  his  directions  for  $700,  and  have  the  same  readv  for 
delivery  at  his  shop  October  1,  1871,  in  consideration  whereof  Shaw- 
han agreed  to  accept  the  carriage  at  the  shop  and  pay  the  agreed  price. 
He  alleged  the  tender  of  the  carriage  October  1st,  and  the  refusal  of 
Shawhan  to  accept  or  pay  for  it. 

84  See.  also,  Lawrence  v.  Porter,  ante,  p.  222;  Guetzkow  Bros.  v.  Andrews, 
ante,  p.  207;  Konntj:  v.  Kirkpatrick,  ante,  p.  336;  Booth  v.  S.  D.  R.  M.  Co., 
ante,  p.  203;  Johnson  v.  Allen,  ante,  p.  340.  And  compare  Hoffman  v. 
Chamberlain,  40  N.  J.  Eq.  663,  5  Atl.  1.50,  .53  Am.  Rep.  783  (1885),  and  Barnes 
V.  Brown,  130  N.  Y.  372,  29  N.  E.  760  (1892). 

3B  Part  of  the  opinion  is  omitted. 


Ch.  2)  IN    CONTRACTS    RESPECTING    PERSONALTY.  K53 

GiLMORE,  J.^°  *  *  *  Where  an  action  is  brought  by  the  vendor 
against  the  vendee,  for  refusing  to  receive  and  pay  for  goods  pur- 
chased, the  measure  of  damages  is  the  actual  loss  sustained  by  the 
vendor  in  consequence  of  the  vendee  refusing  to  take  and  pay  for  the 
goods,  or,  in  other  words,  the  difference  between  the  contract  price 
and  the  market  price  at  the  time  and  place  of  delivery.  In  the  author- 
ities cited  by  the  plaintiff  in  error,  no  distinction  is  drawn,  or  attempt- 
ed to  be  drawn,  between  the  sale  of  goods  and  chattels  already  in  ex- 
istence, and  an  agreement  to  furnish  materials  and  manufacture  a 
specific  article  in  a  particular  way,  and  according  to  order,  which  is 
not  yet  in  existence;  the  theory  being,  that  in  neither  case  would  the 
title  pass,  or  property  vest  in  the  purchaser,  until  there  had  been  an 
actual  delivery,  and  that  until  the  title  had  passed,  the  vendor's  remedy 
was  limited  to  the  damages  he  had  suffered  by  reason  of  the  breach 
of  the  contract  by  the  vendee,  which  were  to  be  measured  by  the  rule 
above  stated.  In  this  case  it  is  not  necessary  to  determine  whether 
or  not  a  distinction,  resting  upon  principles  of  law,  can  be  drawn  be- 
tween ordinary  sales  of  goods  in  existence  and  on  the  market,  and 
goods  made  to  order  in  a  particular  way,  in  pursuance  of  a  contract 
between  the  vendor  and  vendee.  The  case  here  is  of  the  latter  kind, 
and  the  question  is,  whether  the  plaintiff  below  was  entitled  to  re- 
cover the  contract  price  of  the  carriage,  on  proving  that  he  had  fur- 
nished the  materials,  and  made  and  tendered  it  in  pursuance  of  the 
terms  of  the  contract.     *     *     * 

In  Bement  v.  Smith,  15  Wend.  (N.  Y.)  493,  the  defendant  em- 
ployed the  plaintiff,  a  carriage-maker,  to  build  a  sulky  for  him,  for 
which  he  promised  to  pay  $80.  The  plaintiff  made  the  sulky  according 
to  contract,  and  took  it  to  the  residence  of  the  defendant,  and  told 
him  he  delivered  it  to  him,  and  demanded  payment,  in  pursuance  of  the 
terms  of  the  contract.  The  defendant  refused  to  receive  it.  Whereup- 
on the  plaintiff  told  him  he  would  leave  it  with  Mr.  De  Wolf,  who 
lived  near;  which  he  did,  and  commenced  suit.  On  the  trial  it  was 
proved  the  sulky  was  worth  $80,  the  contract  price.  The  court  charg- 
ed the  jury,  that  the  tender  of  the  carriage  was  substantially  a  ful- 
fillment of  the  contract  on  the  part  of  the  plaintiff,  and  that  he  was 
entitled  to  sustain  his  action  for  the  price  agreed  upon  between  the 
parties.  The  defendant's  counsel  requested  the  court  to  charge  the 
jury  that  the  measure  of  damages  was  not  the  sulky,  but  only  the  ex- 
pense of  taking  it  to  the  residence  of  the  defendant,  delay,  loss  of 
sale,  etc.    The  judge  declined  to  so  charge.     *     *     * 

In  Ballentine  et  al.  v.  Robinson  et  al.,  46  Pa.  177,  an  agreement  was 
made  between  the  plaintiffs  and  defendants,  whereby  the  plaintiff's  were 
to  provide  materials,  and  construct  for  the  defendants  a  six-inch 
steam  engine,  with  boiler  and  Gifford  injector  and  heater,  in  considera- 
tion whereof  the  defendants  were  to  pay  plaintiffs  $535  in  cash  on  the 

8  6  Part  of  the  opinion  is  omitted. 


554  DAMAGES   IN  CERTAIN  SPECIFIC  ACTIONS.  (Part    6 

completion  thereof.  The  plaintiffs  complied  with  and  completed  the 
contract  in  all  respects  on  their  part,  but  the  defendants  refused  to 
pay  according  to  contract.     *     *     * 

The  defendants'  counsel  asked  the  court  to  instruct  the  jury  "that 
the  proper  measure  of  damages  in  this  case  is  the  difference  between 
the  price  contracted  to  be  paid  for  the  engine  and  the  market  price  at 
the  time  the  contract  was  broken."  The  court  declined  to  charge  as  re- 
quested, and  instructed  the  jury  that  the  measure  of  damages  was  the 
contract  price  of  the  engine,  with  interest.     *     *     * 

The  Supreme  Court  affirmed  the  judgment  in  the  case  below.  It 
will  be  seen  that  these  cases  are  very  similar,  and  presented  the  same 
question,  and  in  the  same  manner  that  the  question  is  presented  in  this 
case.  Graham  v.  Jackson,  14  East,  498,  decides  the  point  in  the  same 
way.  Mr.  Sedgwick,  in  his  work  on  Damages,  side  page  280,  in  speak- 
ing on  this  subject,  says:  "Where  a  vendee  is  sued  for  nonperform- 
ance of  the  contract  on  his  part,  in  not  paying  the  contract  price,  if 
the  goods  have  been  delivered,  the  measure  of  damages  is  of  course  the 
price  named  in  the  agreement;  but  if  their  possession  has  not  been 
changed,  it  has  been  doubted  whether  the  rule  of  damages  is  the  price 
itself,  or  only  the  difference  between  the  contract  price  and  the  value 
of  the  article  at  the  time  fixed  for  its  delivery.  It  seems  to  be  well 
settkd  in  such  cases  that  the  vendor  can  resell  them,  if  he  sees  fit,  and 
charge  the  vendee  with  the  dift'erence  between  the  contract  price  and 
that  realized  at  the  sale.  Though  perhaps  more  prudent  it  is  not  nec- 
essary that  the  sale  should  be  at  auction ;  it  is  only  requisite  to  show 
that  the  property  was  sold  for  a  fair  price.  But  if  the  vendor  does  not 
pursue  this  course,  and,  without  reselling  the  goods,  sues  the  vendee 
for  his  breach  of  contract,  the  question  arises  which  we  have  already 
stated,  whether  the  vendor  can  recover  the  contract  price,  or  only  the 
difference  between  that  price  and  the  value  of  the  goods  which  remain 
in  the  vendor's  hands;  and  the  rule  appears  to  be  that  the  vendor  can 
recover  the  contract  price  in  full." 

The  only  case  I  have  examined  in  which  the  authorities  on  this  point 
are  reviewed,  is  that  of  Gordon  v.  Norris,  49  N.  H.  376.  The  learned 
judge  *  *  *  says  that  there  is  a  distinction  between  the  case  of 
liement  v.  Smith,  and  the  ordinary  cases  of  goods  sold  and  delivered — 
viz.,  "the  distinction  between  a  contract  to  sell  goods  then  in  existence, 
and  an  agreement  to  furnish  materials  and  manufacture  an  article  in 
a  particular  way  and  according  to  order,  which  is  not  yet  in  existence." 
He  recognizes  Bement's  Case  and  others  of  the  same  class  as  excep- 
tions to  the  general  rule  which  is  to  be  applied  in  the  sale  of  ordinary 
goods  and  merchandise  which  have  a  fixed  market  value ;  and  in  the 
syllabus  of  the  case,  the  distinction  is  kept  up  and  stated  as  follows : 

"When  the  vendee  refuses  to  receive  and  pay  for  ordinary  goods, 
wares,  and  merchandise,  which  he  has  contracted  to  purchase,  the 
measure  of  damages  which  the  vendor  is  entitled  to  recover  is  not  ordi- 
narily the  contract  price  for  the  goods,  but  the  difference  between  the 


Ch.  2)  IN    CONTRACTS    RESPECTING    PERSONALTY.  555 

contract  price  and  the  market  price  or  value  of  the  same  goods  at  the 
time  when  the  contract  was  broken. 

"But  when  an  artist  prepares  a  statue  or  picture  of  a  particular 
person  to  order,  or  a  mechanic  makes  a  specific  article  in  his  line  to  or- 
der, and  after  a  particular  measure,  pattern,  or  style,  or  for  a  particu- 
lar use  or  purpose — when  he  has  fully  performed  his  part  of  the  con- 
tract, and  tendered  or  offered  to  deliver  the  article  thus  manufactured 
according  to  contract,  and  the  vendee  refuses  to  receive  and  pay  for 
the  same,  he  may  recover  as  damages,  in  an  action  against  the  vendee 
for  breach  of  the  contract,  the  full  contract  price  of  the  manufactured 
article." 

As  has  been  said,  we  are  not  called  upon  now  to  determine  whether 
the  distinction  as  drawn  in  the  clauses  quoted,  is  sound  on  principle  or 
not ;  but  be  that  as  it  may,  we  recognize  the  law  applicable  to  the  case 
before  us  as  being  correctly  stated  in  the  clause  last  quoted.     *     *     * 

When  the  plaintiff  had  completed  and  tendered  the  carriage  in  full 
performance  of  the  contract  on  his  part,  and  the  defendant  refused  to 
accept  it,  he  had  the  right  to  keep  it  at  the  defendant's  risk,  using  rea- 
sonable diligence  to  preserve  it,  and  recover  the  contract  price,  with 
interest,  as  damages  for  the  breach  of  the  contract  by  the  defendant. 
Or,  at  his  election,  he  could  have  sold  the  carriage  for  what  it  would 
have  brought  at  a  fair  sale,  and  have  recovered  from  the  defendant 
the  difference  between  the  contract  price  and  what  it  sold  for.     *     *     * 


TODD   v.   GAMBLE. 

(Court  of  Appeals  of  New  York,  1896.     148  N.   Y.  382,  42  N.  E.  982,  25  L. 

R.  A.  225.) 

Gray,  J.^^  This  appeal  presents  the  question  of  the  proper  measure 
of  damages  in  an  action  against  the  defendants  for  refusing  to  per- 
form their  contract  with  the  plaintiffs.  By  that  contract  the  plaintiffs, 
who  were  manufacturers  of  chemicals,  were  to  furnish  the  defendants 
with  "whatever  quantities  of  silicate  of  soda  they  will  require  to  use 
in  their  factories  during  one  year  from  date"  at  the  price  of  $1.10 
per  100  pounds,  in  New  York.  Under  this  agreement  the  plaintiffs 
had  delivered,  and  the  defendants  had  paid  for,  350  barrels  of  the 
article,  when  the  latter  notified  the  former  that  they  would  not  receive 
any  more.     *     *     * 

For  the  balance  of  the  contract  year  the  defendants  used  about 
2.8T7  barrels, of  silicate  of  soda  (each  barrel  containing  about  550 
pounds),  which  they  purchased  from  other  parties ;  and  under  in- 
structions from  the  court  that  the  plaintiffs,  if  there  was  no  market 
value  for  the  article,  were  entitled  to  recover  the  difference  between 
the  cost  of  production  and  the  contract  price,  the  jury  rendered  a  ver- 

3  7  Part  of  the  opinion  is  omitted. 


556  DAMAGES  IN  CERTAIN  SPECIFIC  ACTIONS.  (Part    6 

diet  for  the  plaintiffs  against  the  defendants  for  their  faiUire  to  take 
that  amount,  for  damages  measured  by  that  rule.  They  also,  upon  the 
request  of  the  court,  made  a  special  finding  that  af  the  time  of  the 
breach  by  the  defendants  of  their  contract  there  was  no  market  value 
for  silicate  of  soda. 

The  general  rule  for  the  measure  of  damages  in  the  case  of  a 
breach  by  a  vendee  in  the  contract  for  the  sale  of  an  article  of  mer- 
chandise at  a  fixed  price  is  the  difference  between  the  contract  price 
and  the  market  value  of  the  article  on  the  day  and  at  the  place  of  de- 
livery. *  *  *  That  is  the  rule  which  has  been  recognized  both  in 
England  and  here.  The  principle  upon  which  it  rests  is  that  of  an  in- 
demnification of  the  injured  party  for  the  injury  which  he  has  sus- 
tained, and,  in  ordinary  cases,  the  value  in  the  market  on  the  day 
forms  the  readiest  and  most  direct  method  of  ascertaining  the  meas- 
ure of  this  indemnity.  If  the  article  is  bought  and  sold  in  the  market, 
the  market  price  shows  what  pecuniary  sum  it  would  take  to  put  the 
plaintiff  in  as  good  a  position  as  if  the  contract  had  been  per- 
formed.    *     *     * 

To  justify  a  departure  from  this  general  rule,  the  facts  must  take 
the  case  out  of  the  ordinary,  and,  if  there  is  no  such  standard  as  a 
market  value,  the  measure  of  the  plaintiff's  damage  may  be  arrived 
at,  in  a  case  like  the  present  one,  by  ascertaining  the  difference  be- 
tween the  contract  price  and  the  cost  of  production  and  delivery. 
Market  value,  in  the  ordinary  sense,  is  generally,  but  not  always,  the 
measure  of  damages,  and  the  application  of  the  rule  necessarily  must 
be  to  a  case  where  it  is  shown  that  there  is  a  market  value  for  the  sub- 
ject of  the  contract  of  sale.     *     *     * 

The  defendants  proceed  upon  the  assumption  that  if  an  article  is 
shown  to  have  a  value,  or  selling  price,  the  measure  of  damages  must 
be  the  difference  between  it  and  the  contract  price,  irrespective  of  the 
question  of  the  nature  of  the  market  for  it.  To  use  their  language : 
"If  there  be  no  market,  in  a  restricted  sense,  yet,  if  the  commodity  is 
the  subject  of  sale,  and  there  is  a  selling  price,  the  same  rule  obtains, 
and  proof  of  cost  should  be  excluded."  Proceeding  upon  that  assump- 
tion, they  argue,  substantially,  that  as  there  was  shown  to  be  a  selling 
price,  from  the  fact  of  there  having  been  sales  of  the  article  by  the 
plaintiffs,  it  is  a  controlling  factor,  and  compels  the  application  of  the 
general  rule  for  which  they  contend.  To  that  proposition  I  think  we 
should  not  assent,  and  I  fail  to  find  adequate  support  for  it  either  in 
principle  or  in  the  authorities. 

The  general  rule  certainly  can  have  no  application  to  the  case  of  a 
breach  of  a  contract  for  the  manufacture  and  sale  of  a  commodity, 
unless  it  is  made  to  appear  that  upon  the  breach  by  the  vendee  the  ven- 
dor could  have  placed  the  commodity  upon  the  market,  and,  by  thus  dis- 
posing of  it,  have  relieved  himself  from  the  consequences  of  the  de- 
fendants' default.  The  principle  of  indemnity  upon  which  the  rule 
rests  would  be  satisfied  in  such  a  case,  and  the  vendor  would  be  con- 


Ch.  2)  IN    CONTRACTS    RESPECTING   PERSONALTY.  557 

fined  for  his  recovery  to  the  difference  between  a  known  market  value 
at  the  time  of  the  breach  of  the  contract  and  the  price  fixed  by  the 
contract.  *  *  *  What  must  the  parties  be  deemed  to  have  con- 
templated in  the  present  case?  The  defendants  bound  the  plaintiffs, 
through  this  contract,  to  supply  all  the  silicate  of  soda  which  they 
would  require  for  the  year.  The  plaintiffs,  with  ample  capacity  for 
supplying  the  article,  contemplated  that  their  production  would  be 
increased  by  the  amount  which  the  defendants  would  take  from  them 
during  the  year.     *     *     * 

Of  course,  they  must  have  contemplated  a  profit  to  the  plaintiffs  if 
they  could  manufacture  at  a  cost  under  the  contract  price.  It  is  ab- 
surd to  say,  in  view  of  the  evidence,  that  there  was  a  market  value,  in 
the  ordinary  sense  of  the  term,  for  silicate  of  soda,  and,  perhaps,  the 
defendants  do  not  seriously  argue  that  there  was.  But  if  we  are  to 
hold,  in  accordance  with  their  views,  because  there  was  a  price  at 
which  the  plaintiffs  had  been  able  to  effect  sales  of  the  article  at  the 
time  of  the  breach,  that  that  fact  must  be  controlling  in  fixing  the  meas- 
ure of  damages,  we  should  be  doing  a  great  injustice,  and  we  should 
be  establishing  a  commercial  rule,  which  would  work  injuriously  in 
cases  where,  like  the  present  one,  the  subject  of  sale  between  the  par- 
ties is  an  article  perishable  in  its  nature,  when  kept  for  any  length  of 
time,  having  but  a  limited  demand,  and  no  real  market,  and  only  manu- 
factured in  any  quantities  upon  orders  by  consumers.     *     *     * 

Affirmed. 


WHITE  V.  SOLOMON. 

{Supreme  Judicial  Court  of  Massacliusetts,  1895.    164  Mass.  516,  42  N.  E.  104, 

30  L.  R.  A.  537.) 

Holmes,  J.^^    This  is  an  action  upon  the  following  contract: 

*  *■*  *  *  *  *  ^  *  i{f 

"Messrs.  J.  T.  White  &  Co.,  Publishers,  New  York— Gentlemen : 
Please  deliver,  according  to  shipping  directions  given  below,  one 
White's  Physiological  Manikin,  Medical  Edition,  price  $35.00.  In 
consideration  of  its  delivery  for  me,  freight  prepaid,  at  the  express 
office  specified  below,  I  promise  to  pay  the  sum  of  $35.00,  as  follows : 
$10.00  upon  delivery  at  the  express  office,  and  the  balance  in  monthly 
payments  of  $5.00,  each  payable  on  the  first  of  each  and  every  month 
thereafter,  until  the  whole  amount  is  paid,  for  which  the  publishers 
are  authorized  to  draw  when  due. 

"It  is  expressly  hereby  agreed  that,  in  case  of  the  failure  to  pay  any 

one  of  the  said  installments  after  maturity  thereof,  all  of  said  install- 

.tnents  remaining  unpaid  shall  immediately  become  due  and  payable, 

and  the  said  James  T.  White  &  Co.  may  take,  or  cause  to  be  taken,  the 

said  manikin  from  the  possession  of  the  said  subscriber  or  their  rep- 

3  8  Part  of  the  opinion  is  omitted. 


558  DAMAGES   IN   CERTAIN   SPECIFIC  ACTIONS.  (Part    6 

resentatives,  to  whom  he  may  have  delivered  the  same,  without  re- 
course against  said  James  T.  White  &  Co.  for  any  money  paid  on  ac- 
count thereof;  it  being  expressly  agreed  that  the  money  paid  on  ac- 
count shall  be  for  the  use  and  wear  of  said  manikin.     *     *     * 

"James  M.  Solomon,  75  Court  Street." 

The  manikin  was  delivered,  as  agreed,  to  the  express  company, 
freight  prepaid;  that  the  defendant  refused  to  receive  it;  that,  in  con- 
sequence, the  express  company,  after  a  time,  left  the  manikin  at  the 
plaintiffs'  place  of  business,  in  pursuance  of  a  rule  of  the  company, 
and  without  the  plaintiffs'  assent;  and  that  it  is  held  subject  to  the  de- 
fendant's order.     *     *     * 

In  an  ordinary  contract  of  sale,  the  payment  and  the  transfer  of  the 
goods  are  to  be  concurrent  acts;  and  if  the  buyer  refuses  to  accept 
the  goods,  even  w^rongfully,  he  cannot  be  sued  for  the  price,  because 
the  event  on  which  he  undertook  to  pay  the  price  has  not  happened ; 
and,  although  the  fact  that  it  has  not  happened  is  due  to  his  own  wrong, 
still  he  has  not  promised  to  pay  the  price  in  the  present  situation,  but 
must  be  sued  for  his  breach  of  contract  in  preventing  the  event  on 
which  the  price  would  be  due  from  coming  to  pass.  The  damages  for 
such  a  breach  necessarily  would  be  diminished  by  the  fact  that  the 
vendor  still  had  the  title  to  the  goods.  But  in  the  case  at  bar  the  buy- 
er has  said  in  terms  that  although  the  title  does  not  pass  by  the  delivery 
to  the  express  company,  if  it  does  not,  delivery  shall  be  the  whole  con- 
sideration for  an  immediate  debt  (partly  solvendum  in  futuro),  of  the 
whole  value  of  the  manikin,  and  that  the  passing  of  the  title  shall 
come  as  a  future  advantage  to  him  when  he  has  paid  the  whole.  The 
words  "in  consideration  of  delivery"  are  not  accidental  or  insignificant. 
The  contract  is  carefully  drawn,  so  far  as  to  make  clear  that  the  ven- 
dors intend  to  reserve  unusual  advantages  and  to  impose  unusual  bur- 
dens.    *     *     * 

When,  as  here,  by  the  terms  of  the  contract,  every  condition  has 
been  complied  with  which  entitles  the  vendors  to  the  whole  sum,  and, 
if  the  vendors  afterwards  have  not  either  broken  the  contract  or  done 
any  act  diminishing  the  rights  given  them  in  express  words,  the  buyer 
cannot,  by  an  act  of  his  own  repudiating  the  title,  gain  a  right  of  re- 
coupment, or  otherwise  diminish  his  obligation  to  pay  the  whole  sum 
which  he  has  promised.  See  Smith  v.  Bergengren,  153  Mass.  236, 
238,  26  N.  E.  690,  10  L.  R.  A.  768. 

If  the  first  payment  of  $10  upon  delivery  were  to  be  made  upon  de- 
livery to  the  buyer,  it  well  may  be  that,  if  the  buyer  refused  to  accept 
the  manikin  or  to  pay  the  $10,  the  sellers'  only  remedy  would  be  for  a 
breach,  and  that  they  could  not  leave  the  manikin  at  his  house,  and 
waive  the  payment  against  his  will,  with  the  result  of  making  the  whole 
sum  due.  But  here  the  delivery  is  to  be  to  an  express  company,  and  the* 
provision  for  payment  of  $10  "upon  delivery  at  the  express  office" 
must  mean  after  the  delivery;  so  that  the  delivery  is  the  first  act,  and 
by  itself,  without  more,  fixes  the  rights  of  the  vendors  to  the  price, 


Ch.  2)  IN    CONTRACTS    RESPECTING    PERSONALTY.  559 

just  as  the  transfer  of  the  stock  did  in  Thompson  v.  Alger,  12  Mete. 
(Mass.)  428,  444.     *     *     * 

FiELD^  C.  J.  (dissenting).^®  It  is  not  easy,  perhaps,  to  reconcile  ali 
our  decisions  upon  the  measure  of  damages  in  actions  for  goods  bar- 
gained and  sold  or  for  goods  sold  and  delivered;  but  the  general 
rule  is,  I  think,  that  where  the  title  passes  to  the  vendee  by  the  con- 
tract, and  the  contract  has  been  executed  by  a  delivery,  or  by  what  is 
equivalent  to  a  delivery,  the  vendee  is  liable  to  the  vendor  for  the 
price ;  but  where  the  title  does  not  pass  to  the  vendee  by  the  contract, 
and  he  declines  to  receive  and  accept  the  goods  sold,  the  damages  are 
the  injury  suffered  from  the  breach,  which  usually  is  the  difference  be- 
tween the  price  agreed  upon  and  the  market  value  of  the  goods  at  the 
time  and  place  of  delivery.     *     *     * 

It  becomes  necessary  in  the  present  case  to  consider  the  nature  of 
the  contract.  The  contract,  I  think,  is  in  effect  a  contract  for  a  con- 
ditional sale,  and  the  intention  is  that  the  title  shall  not  vest  in  the  de- 
fendant until  the  price  is  paid.  If  the  price  is  not  paid  according  to 
the  terms  of  the  contract,  the  plaintiff  is  authorized  to  retake  the  mani- 
kin without  being  accountable  to  the  defendant  for  any  of  the  money 
paid  by  him  on  account  of  the  price.  If  the  plaintiffs  exercise  this 
right  of  retaking  the  manikin  into  their  possession  because  the  price 
is  not  paid,  they  have  both  the  title  and  the  possession,  because  they 
have  never  parted  with  the  title.  What,  then,  is  the  rule  of  damages 
under  such  a  conditional  contract  of  sale,  when  the  vendee  refuses  to 
receive  the  article,  and  it  is  returned  to  and  retained  by  the  vendor? 
I  think  that  the  construction  to  be  given  to  the  contract  is  that,  if  the 
defendant  does  not  pay  the  price  according  to  the  contract,  the  plain- 
tiffs may  retake  the  manikin  from  the  possession  of  the  defendant, 
and  retain  what  he  has  paid  on  account  of  the  price,  or  that  they  may 
leave  the  manikin  in  the  possession  of  the  defendant,  and  sue  him  for 
the  installments  of  the  price  which  remain  unpaid.  But  the  plaintiffs 
cannot  collect  the  whole  price,  and  also  retake  the  manikin.  They  can- 
not hold  the   title   to   the  property,   and   also   recover  the   price   of 

«^       sfc      ^i      3p 

The  damages  to  be  recovered  when  a  vendee,  in  a  conditional  con- 
tract of  sale,  refuses  to  receive  the  property,  and  it  is  returned  to  the 
vendor  by  his  assent,  and  is  retained  by  him,  seems  to  me  analogous  to 
the  damages  to  be  recovered  when  a  vendee  in  an  executory  contract 
of  sale  refuses  to  receive  the  property.  Morse  v.  Sherman,  106  Mass. 
430-434;  Tufts  v.  Bennett,  163  Mass.  398,  40  N.  E.  172.  See  Tufts 
v.  Grewer,  83  Ale.  407,  22  Atl.  382.  The  title  in  each  case  remains 
in  the  vendor ;  and  the  damages,  when  the  thing  sold  is  a  commodity 
usually  bought  and  sold  in  the  market,  are  generally  the  difference  be- 
tween the  price  agreed  to  be  paid  and  the  market  value  of  the  proper- 
ty at  the  time  and  place  of  delivery.  In  my  opinion,  such  should  be 
the  rule  in  this  case.     *     *     * 

3  9  Part  of  the  dissenting  opinion  is  omitted 


560  DAMAGES  IN   CERTAIN   SrECIFIC   ACTIONS.  (Part   6 

HOSMER  V.  WILSON. 

(Supreme  Court  of  Michigan,  1859.     7  Micli.  204,  74  Am.  Dec.  71 G.) 

One  of  defendants  had  called  at  plaintiff's  foundry,  and  there 
signed  a  written  order  for  an  engine,  to  be  paid  for  when  taken  out  of 
the  shop.  Plaintiff's  clerk  accepted  the  order.  Plaintiff  then  pro- 
ceeded to  make  such  engine,  and  only  stopped  when  he  received  a 
letter  from  defendants  countermanding  the  order. 

Christiancy,  J.^"  *  *  *  jn  the  case  of  a  contract  for  a  certain 
amount  of  labor,  or  for  work  for  a  specified  period — when  the  labor 
is  to  be  performed  on  the  materials  or  property,  or  in  carrying  on  the 
business,  of  the  defendant,  or  when  the  defendant  has  otherwise  ac- 
cepted or  appropriated  the  labor  performed,  if  the  defendant  prevent 
the  plaintiff  from  performing  the  whole,  or  wrongfully  discharge  him 
from  his  employment,  or  order  him  to  stop  the  work,  or  refuse  to  pay 
as  he  has  agreed  (when  payments  become  due  in  the  progress  of  the 
work),  or  disable  himself  from  performing,  or  unqualifiedly  refuse  to 
perform  his  part  of  the  contract,  the  plaintiff  may,  without  further  per- 
formance, elect  to  sue  upon  the  contract  and  recover  damages  for  the 
breach,  or  treat  the  contract  as  at  an  end,  and  sue  in  general  assumpsit 
for  the  work  and  labor  actually  performed:  Hall  v.  Rupley,  10  Pa. 
231;  Moulton  v.  Trask,  9  Mete.  (Mass.)  579;  Derby  v.  Johnson,  21 
Vt.  21;  Canada  v.  Canada,  6  Cush.  (Mass.)  15;  Draper  v.  Randolph, 
4  Har.  (Del.)  454;    Webster  v.  Enfield,  5  Oilman  (111.)  298. 

And  in  such  cases  he  may,  it  would  seem,  under  the  common  in- 
debitatus count,  recover  the  contract  price,  where  the  case  is  such  that 
the  labor  done  can  be  measured  or  apportioned  by  the  contract  rate ; 
or  whether  it  can  be  so  apportioned  or  not,  he  may  under  the  quantum 
meruit  recover  what  it  is  reasonably  worth.  But  in  all  such  cases, 
the  defendant,  having  appropriated  and  received  the  benefit  of  the 
labor  (or,  what  is  equivalent,  having  induced  the  plaintiff  to  expend 
his  labor  for  him,  and,  if  properly  performed  according  to  his  desire, 
the  defendant  being  estopped  to  deny  the  benefit),  a  duty  is  imposed 
upon  the  defendant  to  pay  for  the  labor  thus  performed.  This  duty 
the  law  enforces  under  the  fiction  of  an  implied  contract,  growing  out 
of  the  reception  or  appropriation  of  the  plaintiff's  labor. 

It  is  therefore  evident,  first,  that  in  all  the  cases  supposed,  an  im- 
plied contract  would  have  arisen,  and  the  plaintiff  might  have  recov- 
ered upon  a  quantum  meruit,  if  no  special  contract  had  ever  been 
made;  second,  that  in  the  like  cases  (where  the  value  of  the  work 
done  could  not,  as  it  probably  could  not  in  the  case  before  us,  be  appor- 
tioned by  the  contract  price)  the  value  or  fair  price  of  the  work  dene, 
would  necessarily  constitute  the  true  measure  of  damages.  And  in  all 
such  cases,  as  first  supposed,  either  the  contract  price,  or  the  reasonable 
worth  of  the  labor  done,  would  measure  the  damages. 

40  Part  of  the  opinion  is  omitted. 


Ch.  2)  IN    CONTRACTS    RKSTECTIXG    TERSONALTY.  561 

Similar  considerations  and  like  rules  would,  doubtless,  equally  apply 
to  contracts  for  furnishing  materials,  and  for  the  sale  and  delivery  of 
personal  property,  when,  after  part  of  the  materials  or  property  has 
been  received  and  appropriated  by,  or  vested  in  the  defendant,  he  has 
prevented  the  plaintiff  from  performing,  or  authorizing  him  to  treat 
the  contract  as  at  an  end,  on  any  of  the  grounds  above  mentioned. 

But  the  case  before  us  stands  upon  very  different  grounds.  Here  the 
contract,  as  claimed  to  have  been  proved,  was  in  no  just  sense  a  con- 
tract for  work  and  labor,  nor  could  the  plaintiff,  while  at  work  upon  the 
engine,  be  properly  said  to  be  engaged  in  the  business  of  the  defend- 
ants. It  was  substantially  a  contract  for  the  sale  of  an  engine,  to  be 
made  and  furnished  by  the  plaintiff,  to  the  defendants,  from  the  shop, 
and,  of  course,  from  the  materials  of  the  plaintiff.  The  defendants  had 
no  interest  in  the  materials,  nor  any  concern  with  the  amount  of  the 
labor.  They  were  to  pay  a  certain  price  for  the  engine  when  com- 
pleted. Engines,  it  is  true,  are  not  constructed  without  labor;  the 
labor,  therefore,  constitutes  part  of  the  value  of  the  engine.  But  this 
would  have  been  equally  true  if  the  contract  in  this  case  had  been  for 
an  engine  already  completed. 

The  labor  of  the  plaintiff  was  upon  his  own  materials,  to  increase 
their  value,  for  the  purpose  of  effecting  a  sale  to  defendants  when 
completed.  No  title  in  any  part  of  the  materials  was  to  vest  in  de- 
fendants till  the  whole  should  be  completed  by  plaintiff,  and  delivered 
to  defendants.  The  plaintiff  might  have  sold  any  of  the  materials, 
after  the  work  was  performed,  or  the  whole  engine  when  completed, 
at  any  time  before  delivery  to,  or  acceptance  by,  defendants. 

Whether,  therefore,  the  labor  actually  performed  on  these  ma- 
terials, when  the  defendants  refused  to  go  on  with  the  contract,  or 
prevented  the  further  performance,  had  enhanced  or  diminished  the 
value  of  the  materials,  and  how  much,  would  be  a  necessary  question 
of  fact,  in  arriving  at  any  proper  measure  of  damages.  The  value  of 
the  work  and  labor  does  not,  therefore,  in  such  a  case,  constitute  the 
proper  criterion  or  measure  of  damages.  If  the  value  of  the  materials 
has  been  enhanced  by  the  labor,  the  plaintiff,  still  owning  the  materials 
has  already  received  compensation  to  the  extent  of  the  increased 
value ;  and  to  give  him  damages  to  the  full  value  of  the  labor,  would 
give  him  more  than  a  compensation.  If  the  value  of  the  materials 
has  been  diminished,  the  value  of  the  labor  would  not  make  the  com- 
pensation adequate  to  the  loss.  It  would  be  only  in  the  single  case 
where  the  materials  have  neither  been  increased  nor  diminished  by 
the  labor,  that  the  value  of  the  labor  would  measure  the  damages. 
Such  a  case  could  seldom  occur,  and  whether  it  could  or  not,  in  must  al- 
ways be  a  question  of  fact  in  the  case,  whether  the  value  of  the  ma- 
terials does  remain  the  same,  or  whether  it  has  been  increased,  or 
diminished,  and  to  what  extent. 
Gilb.Dam.— 3G 


562  DAMAGES  IN   CERTAIN   SPECIFIC  ACTIONS.  (Part    6 

Again,  as  the  defendants  never  received  the  engine,  nor  any  of  the 
materials,  the  title  and  possession  still  remained  in  the  plaintiff,  and 
the  defendants  never  having  received  or  appropriated  the  labor  of 
the  plaintiff,  if  the  same  work  had  been  performed  under  the  like  cir- 
cumstances, without  any  actual  or  special  contract,  the  law  would  have 
imposed  no  duty  upon  the  defendants,  and  therefore  implies  no  con- 
tract on  their  part  to  pay  for  the  work  done :  1  Chit.  PI.,  382 ;  Atkin- 
son V.  Bell,  8  B.  &  C,  277;  Allen  v.  Jarvis,  20  Conn.  38. 

The  only  contract,  therefore,  upon  which  the  plaintiff  can  rely  to 
pay  him  for  the  labor,  is  the  special  contract.  No  duty  is  imposed  up- 
on the  defendants  otherwise  than  by  this.  This  contract,  therefore, 
must  form  the  basis  of  the  plaintiff's  action.  He  must  declare  upon  it, 
and  claim  his  damages  for  the  breach  of  it,  or  for  being  wrongfully 
prevented  from  performing  it.  Plis  damages  will  then  be  the 
actual  damages  which  he  has  suffered  from  the  refusal  of  the  defend- 
ants to  accept  the  articles,  or  in  consequence  of  being  prevented  from 
its  performance ;  and  these  damages  may  be  more  or  less  than  the 
value  of  the  labor.    *     *     *  *i 


SECTION  3.— IN  THOSE  RESPECTING  REALTY. 

I.  Vendor's  Failure  to  Give  Title. 
(A)  Refusal  to  Convey. 


FLUREAU  v.  THORNHILL. 

(Court  of  King's  Bench,  1776.     2  W.  Bl.  1078.) 

The  plaintiff  bought  at  an  auction  a  rent  of  £26.  Is.  per  ann.  for  a 
term  of  thirty-two  years,  issuing  out  a  leasehold  house,  which  let  for 
£31.  6s.  The  sale  was  on  the  10th  of  October,  1775.  The  price  at 
which  it  was  knocked  down  to  him  was  £270,  and  he  paid  a  deposit 
of  20  per  cent.,  or  £54.  On  looking  into  the  title,  the  defendant  could 
not  make  it  out;  but  offered  the  plaintiff  his  election,  either  to  take 
the  title  with  all  its  faults,  or  to  receive  back  his  deposit  with  interest 
and  costs.  But  the  plaintiff  insisted  on  a  farther  sum  for  damages  in 
the  loss  of  so  good  a  bargain ;  and  his  attorney  swore,  he  believed  the 
plaintiff  had  been  a  loser  by  selling  out  of  the  stocks  to  pay  the  pur- 
chase money,  and  their  subsequent  rise  between  the  3d  and  the  10th 
oi  November;   but  named  no  particular  sum.    Evidence  was  given  by 

41  See,  also,  Hinckley  v.  P.  B.  S.  Co.,  121  U.  S.  264,  7  Sup.  Ct  875,  30  I* 
Ed.  907  (1887) ;  Lever  v.  D.  C.  CO.,  43  Law  Times  R.  (N.  S.)  706  (18S0) : 
Dnnlop  V.  Grote,  2  Car.  &  K.  1.53  (184.5) ;  Kadish  v.  Young,  ante,  p.  2'^r, 


Cli.  3)  IN  coNTiiACTS  hkspkcting  realty. 


5G3 


the  defendant,  that  the  bargain  was  by  no  means  advantageous,  all 
circumstances  considered;  and  the  auctioneer  proved  that  he  had  or- 
ders to  let  the  lot  go  for  £250.  The  defendant  had  paid  the  deposit 
and  interest,  being  £54.  15s.  Cd.  into  court:  But  the  jury  gave  a  ver- 
dict, contrary  to  the  directions  of  De  Grey,  C.  J.,  for  £74.  15s.  6d., 
allowing  £20  for  damages. 

De  Grey,  C.  J.  I  think  the  verdict  wrong  in  point  of  law.  Upon  a 
contract  for  a  purchase,  if  the  title  proves  bad,  and  the  vendor  is 
(without  fraud)  incapable  of  making  a  good  one,  I  do  not  think  that  the 
purchaser  can  be  entitled  to  any  damages  for  the  fancied  goodness  of 
the  bargain,  which  he  supposes  he  has  lost. 

Blackstone,  J.,  of  the  same  opinion.  These  contracts  are  mere- 
ly upon  condition,  frequently  expressed,  but  always  implied,  that  the 
vendor  has  a  good  title.  If  he  has  not,  the  return  of  the  deposit,  with 
interest  and  costs,  is  all  that  can  be  expected.  For  curiosity,  I  have 
examined  the  prints  for  the  price  of  stock  on  the  last  3d  of  November, 
when  three  per  cent.'s  sold  for  87i/^.  About  £310.  must  therefore 
have  been  sold  to  raise  £270.  And  if  it  costs  £20.  to  replace  this 
stock  a  week  afterwards  (as  the  verdict  supposes),  the  stocks  must 
have  risen  near  seven  per  cent,  in  that  period,  whereas  in  fact  there 
was  no  difference  in  the  price.  Not  that  it  is  material ;  for  the  plain- 
tiff had  a  chance  of  gaining  as  well  as  losing  by  a  fluctuation  of  the 
price.** 


HOPKINS  V.  GRAZEBROOK. 

(Court  of  King's  Bench,  1826.     6  Barn.  &  C.  31.) 

The  vendor,  who  had  contracted  to  purchase  an  estate,  but  who  had 
not  yet  obtained  a  conveyance,  put  up  the  estate  for  sale  by  auction 
and  engaged  to  make  a  good  title  by  a  certain  day,  which  he  was  un- 
able to  do,  as  his  vendor  never  made  a  conveyance  to  him.  The 
vendor  acted  bona  fide,  believing  that  he  could  make  title  when  re- 
quired.   Action  for  damages  by  the  vendee.* 

Abbott,  C.  J.  Upon  the  present  occasion  I  will  only  say,  that  if  it 
is  advanced  as  a  general  proposition,  that  where  a  vendor  cannot  make 
a  good  title  the  purchaser  shall  recover  nothing  more  than  nominal  dam- 
ages, I  am  by  no  means  prepared  to  assent  to  it.  If  it  were  necessary 
to  decide  that  point,  I  should  desire  to  have  time  for  consideration. 
But  the  circumstances  of  this  case  show  that  it  differs  very  materially 

*2The  doctrine  of  Flureau  v.  Thornliill,  2  W.  Bl.  1078  (1775).  does  not 
apply  in  case  tlie  vendor,  having  power  to  do  so,  does  not  convey.  Engel 
V.  Fitcli,  L.  R.  3  Q.  B.  314  (1868) ;  Western  R.  Corp.  v.  Babcock",  6  Mete. 
(Mass.)  346  (1843);  Tracy  v.  Gunn.  29  Kan.  508  (18S3).  Nor  in  case  he  has 
contracted,  in  view  of  defects,  to  complete  his  title.  Taylor  v.  Barnes,  69 
N.  Y.  430  (1877).  Nor  in  case  the  transaction  was  an  exchange  of  land. 
Devin  v.  Hlmer.  29  Iowa.  297  (1870). 

*'nie  statement  of  facts  is  rewritten. 


564  DAMAGES  IN   CERTAIN   SPECIFIC  ACTIONS.  (Part    6 

from  that  which  has  been  quoted  from  Sir  W.  Blackstone's  Reports. 
There  the  vendor  was  the  owner  of  the  estate,  and  an  objection  having 
been  made  to  the  title,  he  offered  to  convey  the  estate  with  such  title 
as  he  had,  or  to  return  the  purchase  money  with  interest;  here,  no 
such  offer  was  or  could  be  made.  The  defendant  had,  unfortunately, 
put  the  estate  up  to  auction  before  he  got  a  conveyance.  He  should  not 
have  taken  such  a  step  without  ascertaining  that  he  would  be  in  a  sit- 
uation to  offer  some  title,  and  having  entered  into  a  contract  to  sell 
without  the  power  to  confer  even  the  shadow  of  a  title,  I  think  he 
must  be  responsible  for  the  damage  sustained  by  a  breach  of  his  con- 
tract. 

Bayley,  J.  The  case  of  Flureau  v.  Thornhill,  2  W.  Bl.  1078,  is 
very  different  from  this,  for  here  the  vendor  had  nothing  but  an  equi- 
table title.  Now  where  a  vendor  holds  out  an  estate  as  his  own,  the 
purchaser  may  presume  that  he  has  had  a  satisfactory  title,  and  if  he 
holds  out  as  his  own  that  which  is  not  so,  I  think  he  may  very  fairly 
be  compelled  to  pay  the  loss  which  the  purchaser  sustains  by  not  hav- 
ing that  for  which  he  contracted. 

HoLROYD  and  Littledale,  JJ.,  concurred.*' 


BAIN  V.  FOTHERGILIv. 

(House  of  Lords,  1874.    L.  R.  7  H.  L.  Cas.  158.) 

The  defendants  contracted  to  sell  to  plaintiffs  a  mining  royalty  then 
held  by  the  executors  of  one  Hill,  who  had  to  obtain  the  consent  of 
the  lessors  thereof  to  assign  the  same.  The  defendants  did  not  mention 
the  necessity  of  obtaining  the  consent,  and  were  subsequently  unable 
to  obtain  it,  whereupon  this  action  was  begun  for  breach  of  the  de- 
fendants' contract  to  convey.    The  defendants  acted  with  bona  fides. 

Lord  Chelmsford.**  My  lords,  this  appeal  brings  in  review  be- 
fore your  lordships  the  case  of  Flureau  v.  Thornhill,  2  Wm.  Bl.  1078, 
and  other  cases  which  have  engrafted  exceptions  upon  it;  and  the 
first  question  to  be  considered  is  whether  that  case  was  rightly  decid- 
ed.    The  decision  took  place  very  nearly  a  century  ago,  in  the  year 

4  3  Parke,  B.,  in  Robinson  v.  Harman,  1  Exch.  855  (1848): 
"The  next  question  is.  wtiat  damages  is  the  plaintiff  entitled  to  recover? 
The  rule  of  the  common  law  Is,  that  where  a  party  sustains  a  loss  by  reason 
of  a  breach  of  contract,  he  is,  so  far  as  money  can  do  it,  to  be  placed  in  the 
same  situation,  with  respect  to  damages,  as  if  the  contract  had  been  perform- 
ed. The  case  of  Flureau  v.  Thornhill,  2  W.  Bl.  1078,  qualified  that  rule  of 
the  common  law.  It  was  there  held  that  contracts  for  the  sale  of  real  estate 
are  merely  on  condition  that  the  vendor  has  a  good  title;  so  that  when  a 
person  contracts  to  sell  real  property,  there  is  an  implied  understanding  that, 
if  he  fail  to  make  a  good  title,  the  only  damages  recoverable  are  the  expenses 
which  the  vendee  may  be  put  to  in  investigating  the  title.  The  present 
case  comes  within  the  rule  of  the  common  law,  and  I  am  unable  to  distinguish 
it  from  Hopkins  v.  Grazebrook,  6  B.  &  C.  31." 

44  Part  of  the  opinion  is  omitted,  and  the  statement  of  facts  is  rewritten. 


Ch.  2)  IN   CONTRACTS   RESPECTING    REALTY. 

17W,  and  has  been  followed  ever  since;  not,  however  without  an  oc 

-z:;  :=raLS:^^^;  -::r";ror„.,i. .  .^^^^^^^^^^ 

-^-tT^nts^o^^^^^r^iHsSlc: 

chaser  is  not  entitled  to  any  compensation  for  the  loss 

-The  :.,:  an'd  the  .eason  -  ^  -  --.^  fc  f.ir^'tl^ 

mmmmrn 

profit.     Upon  an  examination  of  ^h^, ^^^^^^^^^      ^^^^3,^  t^  complete 
the  property      It  was  held  that  he  was  not  entitled  to  these  dam- 

:i.oTwi^I^a7;iX-e^^^^^^^^^ 

?;XwrnSsrr.:"d^.=:vf his  sanction  to.Lord  C.ef  Justice 
Ahhoffs  doubt  as  to  the  soundness  of  the  decision  in  that  case. 

tS  re  Ts  perhaps,  some  difficulty  in  ascertaining  the  exact  grounds 
of  the  iuctment  ta  FUireau  v.  ThornhiU;  but,  in  addition  to  hose 
whkh  have  been  previously  assigned,  it  seems  to  me  that  the  follow- 
Tng  cons  derations'may  be  Liggested  as  I" --^^^e^^f  PP";':^!  *^ 
correctness  of  the  decision:    "The  fancied  goodness  of  the  bar  am 

ne  uXy  advantage  to  be  derived  from  a  resale  appears  to  me  to  be 
fere  Lnce  too  remote  from  the  breach  of  the  contract.  I  am  aware 
that  in  Engel  v.  Fitch,  3  Q.  B.  314,  in  error  4  Q.  B.  6o9-where  alter 
the  conrra?t  and  before  the  breach  of  it,  the  purchaser  contracted  or 
I  resale  at  an  advance  of  il05.,  the  Court  of  Queen's  Bench  and  the 
Couf  of  Exchequer  Chamber,  though  pressed  with  the  decision  in 
Hadlev  V  Baxendale,  9  Exch.  341,  held  that,  "if  an  increase  m  value 
tos  aken  place  be^w  en  the  contract  and  the  breach,  such  an  increase 
may  be Tak  n  to  have  been  in  the  contemplation  of  the  Part-s  wthin 
The  meaning  of  that  case."  But  it  must  be  borne  in  mind  that  this 
nuesto  as  to  damages  depends,  as  Baron  Alderson  said  in  Hadley 
V  Baxendale  9  Exch.  341,  upon  what  "may  reasonably  be  fpposed 
lo  have  been  n  the  contemplation  of  both  parties  at  the  time  they  made 


5G6  DAMAGES   IN   CERTAIN  SPECIFIC  ACTIONS.  (Part    6 

the  contract  as  the  probable  result  of  the  breach  of  it."  Now,  al- 
though the  purchaser  in  Engel  v.  Fitch,  3  Q.  B.  314,  in  error  4  Q.  B. 
659,  when  he  entered  into  the  contract  may  have  contemplated  a  resale 
at  an  advance,  it  is  not  at  all  likely  that  the  loss  of  this  profit  should 
have  occurred  to  the  vendor  as  the  probable  result  of  the  breach  of 
his  contract.  The  judges  were  no  doubt  influenced  by  the  fact  of  the 
profitable  resale  having  actually  taken  place,  and  were,  in  consequence, 
drawn  aside  from  considering  what  must  have  been  in  the  minds  of 
both  parties  at  the  precise  time  when  they  made  the  contract. 

The  decision  in  Flureau  v.  Thornhill,  2  Wm.  Bl.  1078,  derives  great 
additional  authority  from  the  opinion  of  Lord  St.  Leonards,  who,  in 
his  work  on  the  Law  of  Vendors  and  Purchasers  (14th  Ed.  p.  360), 
considers  that  it  was  rightly  decided. 

The  almost  unanimous  approval  of  the  decision  in  Flureau  v.  Thorn- 
hill,  2  Wm.  Bl.  1078,  was  broken  in  upon  by  an  an  expression  of  disap- 
probation from  Chief  Justice  Abbott  in  the  case  of  Hopkins  v.  Graze- 
brook,  6  Barn.  &  C.  31,  to  which  I  have  already  alluded.     *     *     * 

The  decision  itself  in  Hopkins  v.  Grazebrook,  6  Bam.  &  C.  31, 
cannot  be  supported.  The  seller  in  that  case  had  undoubtedly  an  equi- 
table estate  in  respect  of  which  he  had  a  right  to  contract.  Therefore 
the  language  of  Chief  Justice  Abbott,  that  "the  defendant  had  enter- 
ed into  a  contract  to  sell  without  the  power  to  confer  even  the  shadow 
of  a  title,"  is  not  warranted  by  the  circumstances  of  the  case,  as  the 
defendant  could  certainly  have  assigned  his  equitable  estate ;  and  thus 
the  sole  ground  upon  which  he  held  him  responsible  for  damages  en- 
tirely failed.  But  although  the  facts  in  Hopkins  v.  Grazebrook,  6 
Barn.  &  C.  31,  did  not  justify  the  decision,  yet  the  case  has  always 
been  treated  as  having  introduced  an  exception  to  the  rule  in  Flureau 
V.  Thornhill,  2  Wm.  Bl.  1078,  and  as  having  withdrawn  from  its  opera- 
tion a  class  of  cases  where  a  person,  knowing  that  he  has  no  title  to 
real  estate,  enters  into  a  contract  for  the  sale  of  it.  It  is  not  correct  to 
say  with  Lord  St.  Leonards  in  his  Vendors  and  Purchasers  (14th  Ed., 
p.  359)  that  Hopkins  v.  Grazebrook,  6  Barn.  &  C.  31,  has  not  been 
followed.     *     *     * 

But  in  the  case  of  Engel  v.  Fitch  the  Court  of  Queen's  Bench  (3  Q. 
B.  314),  and  afterwards  the  Exchequer  Chamber  (4  Q.  B.  659,  664), 
proceeded  expressly  on  the  cases  of  Hopkins  v.  Grazebrook,  6  Barn. 
&  C.  31,  and  Robinson  v.  Harman,  1  Exch.  850,  the  Chief  Baron  quot- 
ing the  very  words  of  the  Lord  Chief  Justice,  and  relying  on  those 
cases.  *  *  *  It  was  after  this  decision  in  Engel  v.  Fitch  that  the 
plaintiffs  in  error  declined  to  argue  the  present  case  in  the  Exchequer 
Chamber,  as  the  authorities  on  the  subject  could  only  be  freely  review- 
ed by  a  higher  tribunal.  The  case  therefore  comes  to  your  lordships' 
house  without  the  advantage  of  the  opinions  of  the  learned  judges  of 
that  court. 

Notwithstanding  the  repeated  recognition  of  the  authority  of  Hop- 
kins V.  Grazebrook,  6  Barn.  &  C.  31,  I  cannot,  after  careful  considera- 


Ch.  2)  IN    CONTRACTS    RESPECTING    REALTY.  5G7 

tion,  acquiesce  in  the  propriety  of  that  decision.  I  speak,  of  course, 
of  the  exception  which  it  introduced  to  the  rule  estabUshed  by  Flureau 
V.  Thornhill,  2  Wm.  Bl.  1078,  with  respect  to  damages  upon  the  breach 
of  a  contract  for  the  sale  of  a  real  estate,  for  as  to  the  case  itself  not 
falling  within  the  exception  to  the  rule  (if  any  such  exists),  I  sup- 
pose no  doubt  can  now  be  entertained.  The  exception  which  the  court 
in  Hopkins  v,  Grazebrook,  6  Barn.  &  C.  31,  engrafted  upon  the  rule  in 
Flureau  v.  Thornhill,  2  Wm.  Bl.  1078,  has  always  been  taken  to  be 
this:  that  in  an  action  for  breach  of  a  contract  for  the  sale  of  a  real 
estate  if  the  vendor  at  the  time  of  entering  into  the  contract  knew  that 
he  had  no  title,  the  purchaser  has  a  right  to  recover  damages  for  the 
loss  of  his  bargain. 

In  Sedg.  Dam.  (4th  Ed.)  p.  234,  mentioned  by  Mr.  Baron  Martin, 
in  his  judgment  in  this  case,  after  a  reference  to  the  general  rule  as  to 
damages,  it  is  said:  "To  this  general  rule  there  undoubtedly  exists  an 
important  exception  which  has  been  introduced  from  the  civil  law  in 
regard  to  damages  recoverable  against  a  vendor  of  real  estate  who 
fails  to  perform  and  complete  the  title.  In  these  cases  the  line  has  been 
repeatedly  drawn  between  parties  acting  in  good  faith  and  failing  to 
perform  because  they  could  not  make  a  title,  and  parties  whose  con- 
duct is  tainted  with  fraud  and  bad  faith.  In  the  former  case,  the  plain- 
tiff can  only  recover  whatever  money  has  been  paid  by  him  with  inter- 
est and  expenses.  In  the  latter,  he  is  entitled  to  damages  for  the  loss 
of  his  bargain.  The  exception  cannot,  I  think,  be  justified  or  explain- 
ed on  principle,  but  it  is  well  settled  in  practice."  I  quite  agree  that  the 
distinction  as  to  damages  in  cases  of  contracts  for  the  sale  of  real 
estate,  where  the  vendor  acts  bona  fide,  and  where  his  conduct  is  taint- 
ed with  fraud  or  bad  faith,  is  not  to  be  "justified  or  explained  on  prin- 
ciple."    *     *     * 

Upon  a  review  of  all  the  decisions  on  the  subject,  I  think  that  the 
case  of  Hopkins  v.  Grazebrook,  6  Barn.  &  C.  31,  ought  not  any  longer 
to  be  regarded  as  an  authority.  Entertaining  this  opinion,  I  can  have 
no  doubt  that  the  judgment  of  the  Court  of  Exchequer  in  the  present 
case  is  right,  whether  it  falls  within  the  rule  as  established  by  Flur- 
eau v.  Thornhill,  2  Wm.  Bl.  1078,  or  is  to  be  considered  as  involving 
circumstances  which  have  been  regarded  as  removing  cases  from  the 
influence  of  that  rule ;  because  I  think  the  rule  as  to  the  limits  within 
which  damages  may  be  recovered  upon  the  breach  of  a  contract  for  the 
sale  of  a  real  estate  must  be  taken  to  be  without  exception.  If  a 
person  enters  into  a  contract  for  the  sale  of  a  real  estate  knowing 
that  he  has  no  title  to  it,  nor  any  means  of  acquiring  it,  the  purchaser 
cannot  recover  damages  beyond  the  expenses  he  has  incurred  by  an 
action  for  the  breach  of  the  contract;  he  can  only  obtain  other  dam- 
ages by  an  action  for  deceit. 

It  is  only  necessary  to  add  that,  in  my  opinion,  if  there  were  any 
exceptional  cases  from  the  rule  in  Flureau  v.  Thornhill,  2  Wm.  Bl. 
1078,  the  present  case  would  not  fall  within  any  of  them,  but  is  within 


568  DAMAGES   IN   CERTAIN   SPECIFIC  ACTIONS.  (Part    6 

the  rule  itself.  The  respondents,  when  they  entered  into  the  contract 
for  the  sale  of  Miss  Walter's  royalty,  had  an  equitable  title  to  the  mine 
which  they  might  have  perfected  by  obtaining  the  lessors'  consent  to  the 
assignment  to  them.  This  consent  had  not  been  obtained  at  the  time 
the  contract  was  entered  into,  and  the  fact  was  not  communicated  to 
the  intended  purchaser.  The  reason  for  this  non-communication  is  stat- 
ed in  the  case  to  be,  that  "either  it  did  not  cross  the  mind  of  the  re- 
spondent Fothergill,  or,  if  it  did  occur  to  him  he  forbore  to  mention 
it,  feeling  sure  that  no  difficulty  would  arise  with  respect  to  such  con- 
sent, and  that  it  was  therefore  a  matter  of  no  importance."  There  is 
no  reason  to  think  that  the  respondents  were  not  acting  throughout  un- 
der a  bona  fide  belief  that  the  lessors'  consent  might  be  obtained  at 
any  time  upon  application.  They  were  prevented  performing  their 
contract,  not  from  any  fraud  or  wilful  act  on  their  part,  but  by  an  un- 
expected defect  in  their  title  which  it  was  beyond  their  power  to  cure. 


HOPKINS  V.  LEE. 

(Supreme  Court  of  United  States,   1S21.     6  Wheat.   109,   5  L.  Ed.  218.) 

This  was  an  action  of  covenant,  brought  by  the  defendant  in  error. 
Lee,  against  the  plaintiff  in  error,  Hopkins,  to  recover  damages  for 
not  conveying  certain  tracts  of  military  lands,  which  the  plaintiff  in 
error  had  agreed  to  convey,  upon  the  defendant  in  error  relieving  a 
certain  incumbrance  held  by  one  Rawleigh  Colston,  upon  an  estate 
called  Hill  and  Dale. 

Livingston,  J.*®  *  *  *  jj^  ^j^e  assessment  of  damages,  the 
counsel  for  the  plaintiff  in  error  prayed  the  court  to  instruct  the  jury 
that  they  should  take  the  price  of  the  land,  as  agreed  upon  by  the  par- 
ties in  the  articles  of  agreement  upon  which  the  suit  was  brought,  for 
their  government.  But  the  court  refused  to  give  this  instruction,  and 
directed  the  jury  to  take  the  price  of  the  lands,  at  the  time  they  ought 
to  have  been  conveyed,  as  the  measure  of  damages.  To  this  instruc- 
tion the  plaintiff  in  error  excepted.  The  rule  is  settled  in  this  court, 
that  in  an  action  by  the  vendee  for  a  breach  of  contract,  on  the  part 
of  the  vendor,  for  not  delivering  the  article,  the  measure  of  damages 
is  its  price  at  the  time  of  the  breach.  The  price  being  settled  by  the 
contract,  which  is  generally  the  case,  makes  no  difference,  nor  ought 
it  to  make  any;  otherwise  the  vendor,  if  the  article  have  risen  in  value, 
would  always  have  it  in  his  power  to  discharge  himself  from  his  con- 
tract, and  put  the  enhanced  value  in  his  own  pocket.  Nor  can  it  make 
any  difference  in  principle  whether  the  contract  be  for  the  sale  of 
real  or  personal  property,  if  the  lands,  as  is  the  case  here,  have  not 
been  improved  or  built  on.     In  both  cases  the  vendee  is  entitled  to 

4  5  Part  of  the  opinion  is  omitted. 


Ch.  2)  IN    CONTRACTS    RESPECTING    REALTY.  569 

have  the  thing  agreed  for  at  the  contract  price,  and  to  sell  it  himself 
at  its  increased  value.  If  it  be  withheld,  the  vendor  ought  to  make 
good  to  him  the  difference.     *     *     *     Affirmed. 


PUMPELLY  V.  PHELPS. 

(Court  of  Appeals  of  New  York,  18G9.     40  N.  Y.  59,  100  Am.  Dec.  463.) 

The  defendant,  having  the  power  to  convey  the  land  upon  the  writ- 
ten consent  of  his  cestui  que  trust,  contracted  to  sell  to  plaintiff  a 
certain  lot  in  Stratford,  presuming  that  she,  as  she  previously  had 
done  on  similar  occasions,  would  give  her  consent  on  its  being  asked 
for.  She,  however,  refused  to  give  her  assent.  The  plaintiff  recover- 
ed substantial  damages  below. 

Mason,  J.'*®  There  has  never  seemed  to  me  to  have  been  any  very 
good  foundation  for  the  rule,  which  excused  a  party  from  the  perform- 
ance of  his  contract,  to  sell  and  convey  lands,  because  he  had  not  the 
title  which  he  had  agreed  to  convey.  There  seems  to  have  been  con- 
siderable diversity  of  opinion  in  the  courts  as  to  the  grounds  upon 
which  the  rule  itself  is  based. 

In  England,  the  rule  seems  to  have  been  sustained  upon  the  ground 
of  an  implied  understanding  of  the  parties,  that  the  parties  must  have 
contemplated  the  difficulties  attendant  upon  the  conveyance.     *     *     * 

While  in  this  country  the  rule  is  based  upon  the  analogy  between 
this  class  of  cases  and  actions  for  breach  of  covenant  of  warranty  of 
title.  Baldwin  v.  Munn,  2  Wend.  399,  20  Am.  Dec.  627;  Peters  v. 
McKeon,  4  Denio,  546.     *     *     * 

The  reasons  assigned  for  this  rule  in  actions  for  a  breach  of  covenant 
of  warranty  of  title  can  scarcely  apply  to  these  preliminary  contracts 
to  sell  and  convey  title  at  a  future  time.  In  the  latter  case  the  vendee 
knows  he  has  not  got  the  title,  and  that  perhaps  he  may  never  get 
it;  and  if  he  will  go  on  and  make  expenditures  under  such  circum- 
stances it  is  his  own  fault;  and  besides,  these  preliminary  contracts 
to  convey  generally  have  but  a  short  time  to  run,  and  there  is  seldom 
any  such  opportunity  for  the  growth  of  towns,  or  a  large  increase  in 
the  value  of  the  property  as  there  is  in  these  covenants  in  deeds,  which 
run  with  the  land  through  all  time.     *     *     * 

Where  a  party  sustains  a  loss  by  reason  of  a  breach  of  contract,  he 
is,  so  far  as  money  can  do  it,  to  be  placed  in  the  same  situation  with 
respect  to  damages  as  if  the  contract  had  been  performed.     *     *     * 

These  views  are  not  presented  to  induce  the  court  to  overrule  or 
repudiate  the  adjudged  cases  in  our  own  courts  upon  this  subject. 
They  reach  back  over  a  period  of  more  than  forty  years,  and  have  been 
too  long  sanctioned  to  be  now  repudiated. 

4  6  Part  of  the  opinion  is  omitted,  and  the  statement  of  facts  is  rewritten. 


570  DAMAGES   IN   CERTAIN   SPECIFIC   ACTIONS.  (Part    6 

I  have  referred  to  this  matter  simply  as  furnishing  an  argument 
against  in  any  degree  extending  the  rule,  and  as  a  reason  for  limiting 
it  strictly  where  the  already  adjudged  cases  in  our  own  courts  have 
placed  it.  It  becomes  important  in  this  connection  to  inquire  what  that 
limit  is.  The  general  rule  certainly  is  that  where  the  vendor  has  the 
title  and  for  any  reason  refuses  to  convey  it,  as  required  by  the  con- 
tract, he  shall  respond  in  law  for  the  damages,  in  which  he  shall  make 
good  to  the  plaintiff  what  he  has  lost  by  his  bargain  not  being  lived 
up  to.  This  gives  the  vendee  the  difference  between  the  contract  price 
and  the  value  at  the  time  of  the  breach,  as  profits  or  advantages  which 
are  the  direct  and  immediate  fruits  of  the  contract.     *     *     * 

Where  however  the  vendor  contracts  to  sell  and  convey  in  good 
faith,  believing  he  has  good  title,  and  aftenvard  discovers  his  title  is 
defective,  and  for  that  reason  without  any  fraud  on  his  part,  refuses 
to  fulfill  his  contract,  he  is  only  liable  to  nominal  damages  for  a  breach 
of  his  contract.     *     *     * 

The  rule  is  otherwise  however  where  a  party  contracts  to  sell  lands 
which  he  knows  at  the  time  he  has  not  the  power  to  sell  and  convey; 
and  if  he  violates  his  contract  in  the  latter  case,  he  should  be  held  to 
make  good  to  the  vendee  the  loss  of  his  bargain,  and  it  does  not  excuse 
the  vendor,  that  he  may  have  acted  in  good  faith  and  believed,  when  he 
entered  into  the  contract,  that  he  should  be  able  to  procure  a  good  title 
for  his  purchaser.     *     *     *     Affirmed. 


MARGRAF  v.   MUIR. 
(Commission  of  Appeals  of  New  York,  1874.    57  N.  T.  155.) 

The  defendant,  widow  of  A.  Muir  and  mother  of  six  children,  three 
of  them  minors,  contracted  to  sell  the  lot  in  question,  knowing  that  it 
belonged  to  the  children  by  descent,  and  that  she  would  have  to  obtain 
a  right  to  convey  by  court  proceedings.  There  was  also  an  outstand- 
ing tax  title.  The  lot  was  worth  $2,000,  and  the  contract  called  for  but 
$800.  Specific  performance  was  refused  as  inequitable,  but  damages 
were  awarded  in  the  sum  of  $1,200. 

Earl,  C.*^  *  *  *  'phg  referee  allowed  the  plaintiff  as  damages 
the  difference  between  the  contract-price  and  the  value  of  the  land, 
thus  placing  him  in  the  position  he  would  have  been  if  the  contract  had 
been  performed.  In  this  I  think  he  erred.  The  general  rule  in  this 
state,  in  the  case  of  executory  contracts  for  the  sale  of  land,  is  that  in 
the  case  of  breach  by  the  vendor,  the  vendee  can  recover  only  nominal 
damages,  unless  he  has  paid  part  of  the  purchase-money,  in  which  case 
he  can  also  recover  such  purchase-money  and  interest.     *     *     * 

But  to  this  rule  there  are  some  exceptions  based  upon  the  wrongful 
conduct  of  the  vendor,  as  if  he  is  guilty  of  fraud  or  can  convey,  but 

4  7  Part  of  the  opinion  is  omitted,  and  the  statement  of  facts  is  rewritten. 


Ch.  2)  IN    CONTRACTS    RESPECTING    REALTY.  571 

will  not  either  from  perverseness  or  to  secure  a  better  bargain,  or  if 
he  has  covenanted  to  convey  when  he  knew  he  had  no  authority  to  con- 
tract to  convey;  or  where  it  is  in  his  power  to  remedy  a  defect  in  his 
title  and  he  refuses  or  neglects  to  do  so,  or  when  he  refuses  to  incur 
such  reasonable  expenses  as  would  enable  him  to  fulfill  his  contract. 
In  all  such  cases,  the  vendor  is  liable  to  the  vendee  for  the  loss  of  the 
bargain,  under  rules  analogous  to  those  applied  in  the  sale  of  personal 
property.  Here  no  fraud  was  perpetrated  on  the  vendee.  He  knew 
that  the  vendor  did  not  have  title  to  the  lands,  and  that  she  could  not 
convey  to  him  without  authority  from  some  court;  and  he,  knowing 
that  the  land  was  worth  $2,000,  may  be  presumed  to  have  known  that 
no  authority  could  be  obtained  to  convey  the  land  for  $800,  without 
in  some  way  practicing  an  imposition  upon  the  court.  This  latter 
knowledge  she  did  not  have.  Believing,  as  she  did,  that  $800  was 
a  fair  price  for  the  land,  she  had  no  reason  to  doubt  that  she  could  ob- 
tain authority  to  convey.  Further  than  this,  he  knew  that  the  land  had 
been  sold  for  taxes  and  a  lease  given.  This  she  did  not  know.  Under 
these  circumstances,  she  could  not  get  authority  from  the  court  to  make 
a  conveyance  upon  behalf  of  her  minor  children,  and  it  appears  that 
she  could  not  procure  the  tax  title.  Hence,  there  is  no  ground  for 
imputing  to  her  any  blame  for  not  making  such  a  conveyance  as  her 
contract  called  for.  These  facts  do  not  call  for  the  application  of  an 
exceptional  rule  of  damages  in  this  case. 

The  case  of  Pumpelly  v.  Phelps,  40  N.  Y.  59,  100  Am.  Dec.  463,  is 
the  widest  departure  from  the  general  rule  of  damages  in  such  case 
that  is  to  be  found  in  the  books.  In  that  case  it  was  held,  that  where 
the  vendor,  in  an  executory  contract  for  the  conveyance  of  land,  knew 
at  the  time  he  made  the  contract  that  he  had  no  title,  although  he  act- 
ed in  good  faith,  believing  that  he  could  procure  and  give  the  pur- 
chaser a  good  title,  he  was  yet  liable  for  the  difiference  between  the 
contract-price  and  the  value  of  the  land.  But  there  are  two  features 
which  distinguish  this  case  from  that.  In  that  case,  the  vendee  did 
not  know  that  the  vendor  had  no  title.  Here,  he  did  know  it,  and  he 
knew  also  that  she  could  get  no  title  without  imposing  upon  some 
court.  Here  also,  even  if  she  could  have  procured  the  authority  of 
some  court  to  convey,  she  still  would  have  been  unable  to  give  such 
a  title  as  her  contract  called  for,  on  account  of  the  outstanding  tax 
title  which  was  unknown  to  her  when  she  contracted  and  which  she 
could  not  procure.     *     *     * 

The  recovery  should  have  been  confined  to  the  purchase-money 
paid  ($25)  and  the  interest  thereon. 


572  DAMAGES   IN   CERTAIN   SrECIFIC   ACTIONS.  (Part    6 

HAMMOND   V.   HANNIN. 
(Supreme  Court  of  Michigan,   1870.     21   Mich.  374,  4  Am.  Rop.  400.) 

CooLEY,  J.*^  *  *  *  Qj^  September  10,  18G  t,  Hammond  con- 
tracted to  sell  to  Hannin  an  eighty-acre  lot  in  the  county  of  Van  Buren 
for  the  sum  of  $500.     *     *     * 

The  legal  title  to  the  land  appears  to  have  been,  at  the  time  the  con- 
tract was  entered  into,  in  one  John  M.  Gordon,  an  insane  person,  of 
whom  one  Mickle  was  committee.  T.  W.  Mizner,  Esq.,  of  Detroit, 
was  acting  as  agent  for  Mickle,  and  as  such  sold  the  lands  to  Ham- 
mond, who  appears  to  have  purchased  in  good  faith,  and  in  the  belief 
that  he  was  to  obtain  a  good  title.  The  conveyance,  however,  was  not 
yet  made.  Hannin  paid  Hammond  the  whole  amount  of  the  purchase 
money  agreed  to  be  paid  by  her,  except  one  hundred  and  three  dollars, 
and  on  September  14,  1866,  tendered  payment  of  this  sum  and  demand- 
ed title ;  but  Hammond  having  at  that  time  discovered  that  Mickle 
had  no  authority,  as  committee,  to  make  sale  of  lands  in  Michigan, 
declined  to  execute  a  deed  on  this  ground,  and  Hannin  then  brought 
action  against  him  to  recover  damages  for  breach  of  his  contract  to 
convey.     *     *     * 

Upon  the  principal  question,  the  court  below  ruled  that  the  plaintiff 
was  entitled  *  *  *  to  recover  the  profits  which  she  would  have 
made  by  the  good  bargain  she  had  lost,  if  such  it  proved  to  be. 

There  is  no  doubt  that  the  instruction  given  by  the  court  is  correct 
as  a  general  rule.  Where  a  breach  of  contract  occurs,  the  law  aims  to 
make  compensation  adequate  to  the  real  injury  sustained,  and  to  place 
the  injured  party,  so  far  as  money  can  do  it,  in  the  same  position  he 
would  have  occupied  if  the  contract  had  been  fulfilled.     *     *     * 

And  where  the  carrying  out  of  the  contract  would  have  given  one  of 
the  contracting  parties  the  enjoyment  of  a  particular  thing,  and  he  has 
lost  it,  the  damages  he  will  be  entitled  to  are  the  value  of  that  which 
he  has  lost.    See  Engel  v.  Fitch,  L.  R.  3  O.  B.  314. 

To  this  general  rule,  which  is  so  entirely  undisputed  as  to  make 
further  citation  of  authority  superfluous,  an  exception  was  introduced 
in  the  case  of  contracts  for  the  sale  of  land  by  the  decision  in  Flureau 
v.  Thornhill,  2  W.  Bl.  1078.     *     *     * 

Upon  this  exception  to  the  general  rule  subsequent  cases  have  in- 
grafted some  other  exceptions.     *     *     * 

The  principle  underlying  these  cases  is  that,  if  a  party  enters  into 
a  contract  to  sell  knowing  that  he  cannot  make  a  title,  he  is  remitted 
to  his  general  liability,  and  the  exception  introduced  by  Flureau  v. 
Thornhill  does  not  apply.  So  if  a  person  undertakes  that  a  third  party 
shall  convey,  and  is  unable  to  fulfill  his  contract,  the  authorities  are 
that  he  shall  pay  full  damages.  Such  contracts  are  speculative  in  char- 
ts Part  of  the  opinion  is  omitted. 


Ch.  2)  IN    CONTRACTS    RESPECTING    REALTY.  573 

acter,  and  the  party  giving  them  understands  the  risk  he  assumes  when 
the  covenant  is  entered  into.     *     *     * 

There  are  also  numerous  cases  which  decide  that  if  the  vendor  acts 
in  bad  faith — as  if,  having  title,  he  refuses  to  convey,  or  disable  him- 
self from  conveying — the  proper  measure  of  damages  is  the  value  of 
the  land  at  the  time  of  the  breach ;  the  rule  in  such  case  being  the  same 
in  relation  to  real  as  to  personal  property.     *     *     * 

And  the  cases  before  referred  to  in  which  a  party  undertook  to  sell 
that  which  he  did  not  own,  and  knew  he  could  not  control,  may  also, 
where  the  other  party  is  not  informed  of  the  defect,  be  considered  as 
involving  a  degree  of  bad  faith,  and  have  generally  been  so  regarded 
by  the  courts. 

But,  on  the  other  hand,  if  the  contract  of  sale  was  made  in  good 
faith,  and  the  vendor  for  any  reason  is  unable  to  perform  it,  and  is 
guilty  of  no  fraud,  the  clear  weight  of  authority  is  that  the  vendee  is 
limited  in  his  recovery  to  the  consideration  money  and  interest,  with 
perhaps,  in  addition,  the  costs  of  investigating  the  title.     *     *     * 

There  are  some  cases  which  disregard  the  exception  introduced  by 
Flureau  v.  Thornhill,  and  which,  treating  the  question  of  good  or  bad 
faith  in  the  vendor  as  an  unimportant  circumstance,  hold  that  the  meas- 
ure of  damages  on  breach  of  a  contract  to  convey  lands  should  be  the 
same  as  on  breach  of  a  contract  for  a  sale  of  personalty.  It  is  re- 
markable that,  though  this  general  subject  has  been  very  fully  discuss- 
ed in  the  English  cases,  and  in  many  of  the  American  cases  referred 
to,  the  cases  opposed  to  them  appear  generally  to  have  entirely  over- 
looked that  discussion,  and  are  evidently  decided  on  first  impression 
and  without  that  investigation  and  reflection  which  so  important  a 
subject  usually  receives.     *     *     * 

One  very  strong  reason  for  limiting  the  recovery  to  the  consideration 
money  and  interest  in  cases  free  from  bad  faith  is  that  the  measure  of 
damages  is  thus  made  to  conform  to  the  rule  where  the  party  assumes 
to  convey  land  which  he  does  not  own,  and  an  action  is  brought  against 
him  on  the  covenants  of  title  contained  in  his  deed.  This  reason  is 
made  specially  prominent  in  many  of  the  cases;  and  it  cannot  be  de- 
nied that  it  is  an  anomaly  if  the  vendee  is  restricted  to  the  recovery 
of  one  sum  when  an  ineffectual  deed  is  given,  but  allowed  to  recover 
a  larger  compensation  in  case  the  vendor,  when  he  discovers  the  de- 
fect in  his  title,  has  the  manliness  to  inform  the  vendee  of  the  fact, 
and  to  decline  to  execute  worthless  papers.  Had  Hammond  executed 
and  delivered  a  deed  when  it  was  called  for,  the  present  controversy 
could  not  have  arisen ;  and  his  failure  to  do  so,  which  worked  no  ad- 
ditional wrong  to  the  vendee,  and  was  all  that  he  could  do  consistent 
with  good  faith  and  honorable  conduct,  is  the  only  ground  upon 
which  the  plaintiff  can  claim  to  retain  the  large  damages  for  the  loss 
of  her  bargain  which  were  awarded  her  in  the  present  case.  So  long 
as  the  rule  stands  which  thus  limits  the  damages  in  suits  upon  the  cove- 
nants of  title,  so  long  ought  we  also,  I  think,  to  adhere  to  the  deci- 


574  DAMAGES  IN  CERTAIN   SPECIFIC  ACTIONS.  (Part    6 

sions  which  restrict  the  recovery,  as  above  stated,  in  actions  upon  con- 
tracts to  convey. 

It  remains  to  inquire  whether  the  vendee  in  the  present  case  is  en- 
titled, under  the  decisions,  to  recover  damages  for  the  loss  of  her  bar- 
gain, either  on  the  ground  that  the  vendor  assumed  to  sell  what  he  knew 
he  did  not  own,  or  that  he  has  acted  in  bad  faith.  The  vendor's  good 
faith  in  the  whole  transaction  was  fully  conceded  on  the  trial.  *  *  * 
When,  therefore,  the  circuit  judge  laid  down  a  general  rule  which 
made  the  belief  or  good  faith  of  the  defendant  unimportant,  and  which 
would  give  the  vendee  in  every  case  a  compensation  for  the  loss  of 
his  bargain,  where  for  any  reason  the  vendor  fails  to  perform,  I 
think  he  erred,  and  that  the  judgment  should  be  reversed,  and  a  new 
trial  ordered.** 


(B)  Breach  of  Covenants  of  Seisin  and  Quiet  Enjoyment, 
STAATS  V.  TEN  EYCK'S  EX'RS. 

(Supreme  Court  of  New  York,   1805.     3  Caiues,   111,  2  Am.  Dec.   254.) 

On  the  7th  of  January,  1793,  the  testator,  Barent  Ten  Eyck,  by  in- 
denture of  release,  in  consideration  of  i700,  granted,  bargained,  and 
sold  to  the  plaintiff,  and  one  Dudley  Walsh,  in  fee,  two  lots  of  ground 
in  the  city  of  Albany,  covenanting,  "that  he,  the  grantor,  was  the  true 
and  lawful  owner;  that  he  was  lawfully  and  rightfully  seised,  in  his 
own  right,  of  a  good  and  indefeasible  estate  of  inheritance  in  the 
premises ;  that  he  had  full  power  to  sell  in  fee  simple,  and  that  the 
grantees  should  forever  peaceably  hold  and  enjoy  the  premises  with- 
out the  interruption  or  eviction  of  any  person  whatever,  lawfully  claim- 
ing the  same."  In  the  month  of  May  following,  Walsh,  for  a  valu- 
able consideration,  conveyed  his  moiety  of  these  lots  to  Staats,  who, 
on  the  30th  of  October,  1803,  after  due  possession,  by  lease  and  release, 
granted  one  of  them  to  Margaret  Chim  in  fee,  and  covenanted  to  war- 
rant and  defend  her  in  the  peaceable  possession  thereof.  In  August, 
1803,  an  ejectment  was  brought  against  Margaret  Chim,  in  which  a 
judgment  was  obtained  for  a  moiety  of  the  lot  sold  to  her,  execution 
sued  out,  and  this  followed  by  a  recovery  in  an  action  for  the  mesne 
profits.  The  value  of  the  lot,  from  the  moiety  of  which  Margaret 
Chim  was  thus  evicted,  was,  at  the  time  of  the  sale  by  Ten  Eyck,  £300, 
and  that  was  the  consideration  paid  for  it.     Margaret  Chim,  being 

4  9  Flureau  v.  Thornhill,  2  W.  Bl.  1078  (1775),  is  followed  in  some  American 
states,  as  in  Burk  v.  Serrill,  80  Pa.  413,  21  Am.  Rep.  105  (1876) ;  is  modified  in 
others  to  conform  to  Hopkins  v.  Grazebrook,  6  Barn.  &  Cres.  31  (182G),  Foley 
V.  McKeegan,  4  Iowa,  1,  66  Am.  Dec.  107  (1856),  and  Sweem  v.  Steele,  5  Iowa, 
352  (1857) ;  and  is  repudiated  in  toto  in  probably  the  majority  of  jurisdictions, 
as  in  Doherty  v.  Dolan,  65  Me.  87,  20  Am.  Rep.  G77  (1876),  and  Plumnier  v. 
Rlsdon,  78  111.  222,  29  Am.  Rep.  261  (1875). 


Ql    2)  IN    CONTRACTS    RESPECTING    REALTY.  575 

thus  evicted,  brought  her  action  against  the  plaintiff,  and  recovered  for 
the  moiety  she  had  lost.'^**  .  . 

Kent,  C.  J.^^  *  *  *  There  are  two  covenants  contamed  m 
the  deed ;  the  one,  that  the  testator  was  seised  in  fee,  and  had  good 
right  to  convey;  the  other,  that  the  grantee  should  hold  the  land  free 
from  any  lawful  disturbance  or  eviction.  The  present  case  does  not 
state  distinctly  whether  the  eviction  was  founded  upon  an  absolute  title 
to  a  moiety  of  one  lot,  or  upon  some  temporary  encumbrance.  But  i 
conclude  from  the  manner  of  stating  the  questions,  and  so  I  shall  as- 
sume the  fact  to  be,  that  the  testator  was  not  seised  of  the  moiety  so 
recovered  when  he  made  the  conveyance,  and  had  no  right  to  convey 
it  The  last  covenant  cannot,  then,  in  this  case,  have  any  greater  op- 
eration than  the  first,  and  I  shall  consider  the  question  as  if  it  depend- 
ed upon  the  first  covenant  merely. 

At  common  law,  upon  a  writ  of  warrantia  chartse,  the  demand- 
ant recovered  in  compensation  only  the  value   for  the  land  at  the 
time  of  the  warranty  made,  and  although  the  land  had  become  of 
increased  value  afterwards,  by  the  discovery  of  a  mine,  or  by  build- 
ings or  otherwise,  yet  the  warrantor  was  not  to  render  m  value  accord- 
ino-  to  the  then  state  of  things,  but  as  the  land  was  when  the  warranty 
was  made.    Bro.  Abr.  tit.  ''Voucher,"  pi.  69 ;  Id.  tit.  "Recouver  m  Val- 
ue," pi.  59 ;  22  Vin.  144-146 ;  Id.  pi.  1,  2,  9;  Up.  pi.  1,  2,  3  ;  1  Reeves 
Eng   Law    448.     This  recompense  in  value,  on  excambium,  as  it  was 
anciently  termed,  consisted  of  lands  of  the  warrantor,  or  which  his  heir 
inherited  from  him,  of  equal  value  with  the  land  from  which  the  feoffee 
w^as- evicted.    Glanville,  1,  3,  c.  4;   Bracton,  384,  a,  b.    That  this  was 
the  ancient  and  uniform  rule  of  the  English  law,  is  a  point,  as  I  ap- 
prehend, not  to  be  questioned;  yet,  in  the  early  ages  of  the  feudal  law 
on  the  continent,  as  it  appears  (Feudorum,  lib.  2,  tit.  25),  the  lord  was 
bound  to  recompense  his  vassal  on  eviction,  with  other  lands  equal  to 
the  value  of  the   feud  at  the  time  of   eviction;    "feudum   restituat 
ejusdem  ^stimationis  quod  erat  tempore  rei  judicatde."     But  there  is 
no  evidence  that  this  rule  ever  prevailed  in  England ;    nor  do  I  find 
in  any  case,  that  the  law  has  been  altered  since  the  introduction  of 
personal  covenants,  to  the  disuse  of  the  ancient  warranty.    These  cov- 
enants  have  been  deemed   preferable,   because   they   secure   a   more 
easy  certain,  and  effectual  recovery.    But  the  change  in  the  remedy  did 
not  Effect  the  established  measure  of  compensation,  nor  are  we  at  lib- 
erty now  to  substitute  a  new  rule  of  damages  from  mere  speculative 
reasoning,  and  that,  too,  of  doubtful  solidity.    In  warranties  upon  the 
sale  of  chattels  the  law  is  the  same  as  upon  the  sale  of  lands,  and  the 
buyer  recovers  back  only  the  original  price.    Fielder  v.  Starkm,  1  H. 
Black    17.     This  is  also  the  rule  in  Scotland,  as  to  chattels.     1  Ersk. 
206,     Our  law  preserves,  in  all  its  branches,  symmetry  and  harmony 

BO  This  statement  is  aljridged  from  tliat  of  the  official  report 
61  Part  of  the  opinion  is  omitted- 


576  DAMAGES   IN   CERTAIN   SPECIFIC   ACTIONS.  (Part   6 

upon  this  subject.  In  the  modern  case  of  Fkireau  v.  Thornhill,  2 
Black.  Rep.  1078,  the  Court  of  King's  Bench  laid  down  this  doctrine, 
that  upon  a  contract  for  a  purchase  of  land,  if  the  title  prove  bad,  and 
the  vendor  is  without  fraud  incapable  of  making  a  good  one,  the  pur- 
chaser is  not  entitled  to  damages  for  the  fancied  goodness  of  his 
bargain.  The  return  of  the  deposit  money,  with  interest  and  costs 
was  all  that  was  to  be  expected. 

Upon  the  sale  of  lands  the  purchaser  usually  examines  the  titles  for 
himself,  and  in  case  of  good  faith  between  the  parties  (and  of  such 
cases  only  I  now  speak)  the  seller  discloses  his  proofs  and  knowl- 
edge of  the  title.  The  want  of  title  is,  therefore,  usually  a  case  of 
mutual  error,  and  it  would  be  ruinous  and  oppressive,  to  make  the  sel- 
ler respond  for  any  accidental  or  extraordinary  rise  in  the  value  of  the 
land.  Still  more  burdensome  would  the  rule  seem  to  be  if  that  rise 
was  owing  to  the  taste,  fortune,  or  luxury  of  the  purchaser.  No  man 
could  venture  to  sell  an  acre  of  ground  to  a  wealthy  purchaser,  without 
the  hazard  of  absolute  ruin.  The  hardship  of  this  doctrine  has  been 
ably  exposed  by  Lord  Kaines  in  his  examination  of  a  decision  in  the 
Scotch  law,  that  the  vendor  was  bound  to  pay  according  to  the  in- 
creased value  of  the  land.    1  Kaines'  Eq.  284-303 ;  1  Ersk.  20G. 

If  the  question  was  now  res  integra,  and  we  are  in  search  of  a  fit 
rule  for  the  occasion,  I  know  of  none  less  exceptionable  than  the  one 
already  established.  By  the  civil  law  the  seller  was  bound  to  restore 
the  value  of  the  subject  at  the  time  of  eviction,  but  if  the  thing  had 
been  from  any  cause  sunk  below  its  original  price,  the  seller  was  en- 
titled to  avail  himself  of  this  and  pay  no  more  than  the  thing  was 
then  worth;  for  the  Roman  law,  with  its  usual  and  admirable  equity, 
made  the  rule  equal  and  impartial  in  its  operation.  It  did  not  force  the 
seller  to  bear  the  risk  of  the  rise  of  the  commodity  without  also  taking 
his  chance  of  its  fall.  Dig.  lib.  21,  tit.  2,  1.  78 ;  Id.  1.  66,  §  3 ;  Id.  1. 
64,  §  1.  So  far  the  rule  in  that  law  appeared  at  least  clear  and  con- 
sistent but,  with  respect  to  beneficial  improvements  made  by  the  pur- 
chaser, the  decisions  in  the  Code  and  Pandects  are  jarring  and  incon- 
sistent with  each  other,  and  betray  evident  perplexity  on  this  dif- 
ficult question.  Dig.  lib.  19,  tit.  1,  45,  §  1;  Cod.  lib.  tit.  45,  1.  q.,  and 
Perezius  thereon.  The  more  just  opinion  seems  to  be,  that  the  claim- 
ant himself,  and  not  the  seller,  ought  to  pay  for  them,  for  nemo  debet 
locupletari  aliena  jactura,  and  this  rule  has,  according  to  Lord  Hard- 
wicke,  been  several  times  adopted  and  applied  by  the  English  Court  of 
Chancery.  East  In.  Com.  v.  Vincent,  2  Atk.  38.  While  on  this  ques- 
tion, I  hope  it  may  not  be  deemed  altogether  impertinent  to  observe, 
that  in  the  late  digest  of  the  Hindu  law,  compiled  under  the  auspices 
of  Sir  William  Jones,  the  question  before  us  is  stated  and  solved  with 
a  precision  at  least  equal  to  that  in  the  Roman  code,  and  it  is  in  exact 
conformity  with  the  English  law.  On  a  sale  declared  void  by  the  judge 
for  want  of  ownership  the  seller  is  to  pay  the  price  to  the  buyer,  and 
what  price?  asks  the  Hindu  commentator.    Is  it  the  price  actually  re- 


Ch.  2)  IN    CONTRACTS    RESPECTING    REALTY.  5' 

ceived,  or  the  present  value  of  the  thing?  The  answer  is  the  price 
or  which  it  was  sold;  the  price  agreed  on  at  the  t.me  of  he  sale 
and  received  by  the  seller,  and  this  price  shall  be  recovered,  a  though 
the  value  may  have  been  diminished.  1  Colebrook  s  Digest  4.8,  479 
Before  I  conclude  this  head,  I  ought  to  observe,  that  m  the  present 
case  it  does  not  appear  that  any  beneficial  improvements  have  been 
made  upon  the  premises  since  the  purchase  by  the  Pl^^^tiff  and  al- 
though some  of  my  observations  have  been  more  general  than  the 
precise  facts  in  the  case  required,  yet  the  opinion  of  the  court  is  not 
intended  to  be  given,  or  to  reach  beyond  the  case  before  us. 

Livingston,  J.^=^     To  find  a  proper  rule  of  damage  in  a  case  like 
this  is  a  work  of  some  difficulty;  no  one  will  be  entirely  free  from  ob- 
jection, or  not  at  times  work  injustice.     To  refund  the  consideration, 
even  with  interest,  may  be  a  very  inadequate  compensation,  when  the 
oropertv  is  greatly  enhanced  in  value,  and  when  the  same  money  might 
have  been  laid  out  to  equal  advantage  elsewhere.     Yet  to  make  this 
increased  value  the  criterion  where  there  has  been  no  fraud,  may  also 
be  attended  with  injustice,  if  not  ruin.    A  piece  of  land  is  bought  sole- 
ly for  the  purposes  of  agriculture;   by  some  unforeseen  turn  ot  tor- 
tune  it  becomes  the  site  of  a  populous  city,  after  which  an  eviction  takes 
place      Every  one  must  perceive  the  injustice  of  calling  on  a  bona 
fide  vendor  to  refund  its  present  value,  and  that  few  fortunes  cou  d 
bear  the  demand.     Who,  for  the  sake  of  one  hundred  pounds,  would 
assume  the  hazard  of  repaying  as  many  thousands,  to  which  value  the 
property  might  arise,  by  causes  not  foreseen  by  either  party,  and  which 
increase  in  worth  would  confer  no  right  on  the  grantor  to  demand 
a  further  sum  of  the  grantee.     The  safest  general  rule  in  all  actions 
on  contract,  is  to  limit  the  recovery  as  much  as  possible  to  an  indemni- 
ty for  the  actual  injury  sustained,  without  regard  to  the  profits,  which 
the  plaintiff  has  failed  to  make  unless  it  shall  clearly  appear,  from  the 
ao-reement  that  the  acquisition  of  certain  profits  depended  on  the  de- 
fendant's punctual  performance,  and  that  he  had  assumed  to  make 
good  such  a  loss  also.    To  prevent  an  immoderate  assessment  of  dam- 
acres    when  no  fraud  had  been  practiced,  Justinian  directed  that  the 
thing,  which  was  the  object  of  contract,  should  never  be  valued  at 
more  than  double  its  cost.    This  rule  a  writer  on  civil  law  applies  to 
a  case  like  the  one  before  us;   that  is,  to  the  purchase  of  land  which 
had  become  of  four  times  its  original  value  when  an  eviction  took 
place;    but,  according  to  this  rule,  the  party  could  not  recover  more 
than  twice  the  sum  he  had  paid.     This  law  is  considered  by  Pothier 
as  arbitrary,  so  far  as  it  confines  the  reduction  of  the  damages  to  pre- 
cisely double  the  value  of  the  thing,  and  is  not  binding  in  France; 
but  its  principle,  which  does  not  allow  an  innocent  party  to  be  ren- 
dered liable  beyond  the  sum,  on  which  he  may  reasonably  have  cal- 
culated, being  founded  in  natural  law  and  equity,  ought  in  his  opinion 

62  Part  of  this  opinion  is  omitted. 
GiLr..DAM.— 37     ■ 


578  DAMAGES   IN   CERTAIN   SPECIFIC   ACTIONS.  (Part    6 

to  be  followed,  and  care  taken  that  damages  in  the  cases  be  not  exces- 
sive. Rather  than  adhere  to  the  rule  of  Justinian,  or  leave  the  matter 
to  the  opinion  of  a  jury,  as  to  which  may,  or  may  not  be  excessive, 
some  more  certain  standard  should  be  fixed  on.  However  inadequate 
a  return  of  the  purchase  money  must  be  in  many  cases,  it  is  the  safest 
measure  that  can  be  followed  as  a  general  rule.  This  is  all  that  one 
party  has  received,  and  all  the  actual  injury  occasioned  by  the  other. 
I  speak  now  of  a  case,  and  such  is  the  present,  where  the  grantee  has 
not  improved  the  property  by  buildings  or  otherwise,  but  where  the 
land  has  risen  in  value  from  extensive  causes.  What  may  be  a  prop- 
er course,  when  dwelling  houses  or  other  buildings,  and  improvements 
have  been  erected,  we  are  not  now  determining.  Why  should  a  pur- 
chaser of  land  recover  more  than  he  has  paid,  any  more  than  the  vendee 
of  a  house  or  a  ship?  If  these  articles  rise  in  value,  the  vendors  would 
hardly,  if  there  be  no  fraud,  be  liable  to  damages  beyond  the  prices 
they  had  received  with  interest  and  costs,  unless  the  plaintiffs  could 
show  some  further  actual  injury  which  they  had  sustained  in  conse- 
quence of  the  bargain.  The  English  books  afford  but  little  light  on 
this  point,  although  it  is  understood  to  be  the  rule  in  Great  Britain  to 
give  only  the  consideration  of  the  deed.  The  only  thing  to  be  found 
anyways  relating  to  the  subject,  is  in  the  Year  Books  in  Hilary  Term, 
5  Edw.  II,  part  1,  187.  It  is  there  said,  that  in  a  writ  of  dower  after 
the  land  had  been  improved  by  the  feofee,  they  shall  be  extended  or  set 
■off  to  the  widow,  according  to  the  value  at  the  time  of  alienation,  and 
the  reason  assigned  by  Hargrave  in  his  notes  on  Coke  on  Littleton, 
which  is  not,  however,  found  in  the  Year  Books,  is,  "that  the  heir  not 
being  bound  to  warrant,  except  according  to  the  value  of  the  land  at 
the  time  of  the  feoffment,  it  is  unreasonable  the  widow  should  re- 
cover more  of  the  feoffee  than  he  could,  in  case  of  eviction,  of  the 
feoffor."  In  Connecticut,  on  the  contrary,  damages  are  ascertained  by 
the  value  at  the  time  of  eviction,  because  of  land's  increasing  worth, 
which  is  the  very  reason,  perhaps,  it  should  be  otherwise.  And  al- 
though the  English  practice  be  adverted  to  by  the  court  in  giving  its 
opinion,  it  is  supposed  to  be  founded  on  the  permanent  value  of  their 
lands;  but  when  we  recollect  that  this  has  been  the  rule  in  Great 
Britain,  at  least  from  the  commencement  of  the  fourteenth  century, 
since  which  time  lands  have  greatly  advanced  in  price,  we  must  at- 
tribute its  origin  to  some  other  cause;  probably  to  its  intrinsic  justice 
and  merit.  Even  in  Connecticut,  the  rule  applies  only  to  actions  on 
covenant  of  warranty,  and  probably  not  to  those  on  covenant  of  sei- 
sin, because,  in  the  latter  case,  it  is  supposed  the  party  may  immediate- 
ly acquaint  himself  with  the  strength  of  his  title,  and  bring  his  ac- 
tion as  soon  as  he  discovers  it  is  defective.  This  reason  is  not  very 
satisfactory,  for  with  all  his  diligence  a  long  time  may  elapse  before 
liis  title  is  called  in  question,  or  doubts  or  suspicions  raised  about  its 
•i'alidity. 


Ch.  2)  IN    CONTRACTS    RESPECTING    REALTY.  579 

Without  saying,  then,  what  ought  to  be  the  rule,  where  the  estate 
has  been  improved  after  purchase,  my  opinion  is,  that  where  there  has 
been  no  fraud,  and  none  is  alleged  here,  the  party  evicted  can  recover 
only  the  sum  paid,  with  interest  from  the  time  of  payment,  where, 
as  is  also  the  case  here,  the  purchaser  derived  no  benefit  from  the 
property,  owing  to  a  defective  title.  The  plaintiff  must  also  be  reim- 
bursed the  costs  sustained  by  the  action  of  ejectment.  It  was  his  duty 
to  defend  the  property,  and  the  costs  to  which  he  has  been  exposed  be- 
ing an  actual,  not  an  imaginary  loss,  arising  from  the  defendant's  want 
of  title,  he  ought  to  be  made  whale.  In  costs  are  included  reasonable 
fees  of  counsel,  as  well  as  those  which  are  taxable.  If  a  grantee  be 
desirious  of  receiving  the  value  of  land  at  the  time  of  eviction,  he  may, 
by  apt  covenants  in  the  deed  if  a  grantor  will  consent,  secure  such 
benefit  to  himself.     *     *     * 


PITCHER  V.  LIVINGSTON. 

(Supreme  Court  of  New  York,  1809.     4  Johns.  1,  4  Am.  Dec.  229.) 

Van  Ness,  J.^^  *  *  *  The  plaintiff  has  been  evicted,  in  con- 
sequence of  a  total  failure  of  the  title  derived  to  him  under  the  deed 
from  the  defendant.  This  fact  being  assumed,  there  is  no  difference 
between  the  present  case  and  that  of  Staats  v.  Ten  Eyck's  Ex'rs,  3 
Caines,  111,  2  Am.  Dec.  254,  except,  that,  in  this  case,  beneficial  im- 
provements have  been  made  by  the  plaintiff  upon  the  property,  the 
value  of  which  he  contends  he  is  entitled  to  recover.     *     *     * 

In  Staats  v.  Ten  Eyck's  Ex'rs,  the  court  determined  that  the  plain- 
tiff was  not  entitled  to  recover  any  damages  on  account  of  any  in- 
creased value  of  the  land.  Here  a  distinction  is  attempted  to  be  made 
between  an  appreciation  of  the  land  itself,  and  that  appreciation  of  it 
which  is  produced  by  the  erection  of  buildings,  or  the  labour  bestowed 
upon  it  in  clearing  and  cultivating:  a  very  nice,  and,  as  I  apprehend, 
a  speculative  distinction,  to  which  it  would  be  difffcult,  if  not,  in  most 
cases,  impossible,  to  give  any  practical  effect,  without  danger  of  the 
most  flagrant  injustice.     *     *     * 

One,  and  perhaps  the  principal  reason,  why  the  increased  value  of 
the  land  itself  cannot  be  recovered,  is  because  the  covenant  cannot 
be  construed  to  extend  to  any  thing  beyond  the  subject-matter  of  it, 
that  is,  the  land,  and  not  to  the  increased  value  of  it,  subsequently 
arising  from  causes  not  existing  when  the  covenant  was  entered  into. 
For  the  same  reason,  the  covenantor  ought  not  to  recover  for  the 
improvements;  for  these  are  no  more  the  subject-matter  of  the  con- 
tract between  the  parties,  than  the  increased  value  of  the  land.  The 
doctrine  contended  for  by  the  plaintiff's  counsel,  is,  that  the  damages 
sustained  by  the  covenantee  at  the  time  of  the  eviction,  ought  to  be  the 

«S3  Part  of  the  opinion  is  omitted. 


580  DAMAGES   IN  CERTAIN   SPECIFIC  ACTIONS.  (Part    6 

measure  of  compensation.  Most  clearly,  then,  the  increased  valv.?  of 
the  land  is  as  much  within  the  reason  of  this  rule,  as  the  improvements ; 
and  upon  the  same  principle  that  the  covenantee  is  entitled  to  the  one, 
he  is  to  the  other.     *     *     * 

Let  us  then  examine  whether,  consistently  with  certain  fixed  legal 
principles,  the  covenantee  can  recover  a  greater  sum  of  damages  in 
any  case  under  the  covenant  for  quiet  enjoyment,  than  under  the 
covenant  of  seisin? 

An  eviction  must  be  shown  before  a  suit  can  be  maintained  on  the 
former  covenant.  Not  so,  however,  as  to  the  latter ;  for  that  is  broken, 
if  the  grantor  has  no  title,  the  moment  the  deed  is  delivered ;  and  the 
grantee  has  an  immediate  right  of  action.  Whenever  the  eviction  is 
occasioned  by  a  total  want  of  title  in  the  grantor,  then  both  the  cove- 
nants of  seisin  and  for  quiet  enjoyment,  are  equally  broken;  and  the 
grantee  has  his  remedy  on  both.  If  he  proceeds  upon  the  first,  he 
shall  recover  the  consideration  expressed  in  the  deed,  and  the  interest. 
But  if  he  proceeds  upon  the  last,  it -is  said  he  shall  recover  according 
to  the  value  at  the  time  of  eviction ;  and,  as  I  have  before  remarked,  he 
must  be  content  to  recover  according  to  the  then  value,  even  though 
it  amounts  to  one  half  only  of  the  consideration  expressed  in  the  deed. 

The  case  would  then  stand  thus :  When  the  deed  contains  both  these 
covenants,  if  the  property  at  the  time  of  eviction  be  worth  one  half  of 
the  consideration  and  interest,  the  grantee  may,  notwithstanding,  up- 
on the  covenant  of  seisin,  recover  the  whole  consideration  and  interest. 
But  if  the  property  happen  to  be  worth  double  the  consideration  money 
and  interest,  by  reason  of  the  improvements  made  thereon,  he  may 
waive  the  covenant  of  seisin,  and  resort  to  the  covenant  for  quiet  en- 
joyment; and  thus  recover  the  whole  amount.  Can  this  be  possible? 
It  appears  to  me,  that  to  give  such  an  effect  to  these  covenants,  is  not 
reconcilable  with  any  principle  of  law  or  justice. 

My  understanding  of  the  nature  of  these  covenants,  when  both  are 
contained  in  the  same  deed,  is  this :  That  the  covenant  of  seisin, 
which  relates  to  the  title,  is  the  princfpal  and  superior  covenant,  to 
which  the  covenant  for  quiet  enjoyment,  which  goes  to  the  posses- 
sion, is  inferior  and  subordinate.  And  I  am  not  aware  that  a  case 
can  possibly  occur,  where  the  grantor  can  recover  a  greater  amount  in 
damages  for  the  breach  of  the  latter  than  of  the  former ;  though  there 
are  many  cases  where  he  may  recover  less.  The  suit  here  is  brought 
upon  both  covenants ;  and  both,  in  consequence  of  the  total  failure  of 
the  defendant's  title  and  the  eviction,  have  been  broken.  The  plaintiff, 
accordingly,  has  a  right  to  recover  on  both ;  but  as  the  amount  of  the 
recovery  would,  according  to  my  ideas,  be  the  same  on  each,  he  must 
elect  on  which  of  them  he  means  to  rely,  and  take  nominal  damages 
on  the  other.  The  plaintiff  is  entitled  to  but  one  satisfaction,  and  he 
has  his  remedy  on  either  of  the  covenants,  at  his  election,  to  obtain  it. 
It  will  hardly  be  said,  that  he  can  have  judgment  for  the  same  sum 
on  both  the  covenants. 


Ch.  2)  IN    CONTRACTS    RESPECTING    REALTY.  581 

The  covenant  against  incumbrances  stands  upon  a  different  footing, 
and  is  governed  by  different  principles.  That  is  strictly  a  covenant  of 
indemnity;  and  the  grantee  may  recover  to  the  full  extent  of  any 
incumbrances  upon  the  land,  which  he  shall  have  been  compelled  to 
discharge.  But  even  there  it  will  be  found,  that  the  same  rule  prevails, 
in  fixing  the  amount  of  damages,  as  in  actions  upon  the  covenants  of 
seisin  and  for  quiet  enjoyment:  that  is,  the  party  recovers  what  he 
has  paid,  with  the  interest,  and  no  more.     *     *     * 

The  covenant  for  quiet  enjoyment,  as  I  have  before  remarked,  is 
that  upon  which  compensation  for  the  improvements  is  to  be  recovered, 
if  at  all.  This  covenant  has  a  more  strict  analogy  to  the  ancient  cove- 
nant of  warranty,  than  any  of  the  other  modern  covenants.  If,  then, 
on  the  covenant  of  warranty,  the  satisfaction  recovered  in  land  was 
to  be  equivalent  to  the  value  of  the  lands  granted,  as  it  existed  at 
the  time  when  the  covenant  was  made,  I  do  conceive,  that  we  are  bound 
to  adopt  a  correspondent  rule,  when  satisfaction  is  sought  to  be  re- 
covered in  money,  in  a  personal  action,  on  the  covenant  for  quiet  en- 
joyment. 

Such  a  rule,  moreover,  I  consider  to  be  conformable  to  the  intention 
of  the  parties.  I  question  if  one  grantor  out  of  ten  thousand  enters 
into  these  covenants  with  the  remotest  belief  that  he  is  exposing  him- 
self and  his  posterity  to  the  ruinous  consequences  which  would  re- 
sult from  the  doctrine  contended  for  by  the  counsel  for  the  plaintiff. 
By  giving  this  doctrine  our  sanction,  we  should,  in  my  apprehension, 
create  a  most  unexpected  and  oppressive  responsibility,  never  contem- 
plated by  the  parties,  and  inflict  an  equally  unmerited  punishment  up- 
on grantors  acting  with  good  faith,  and  having  a  perfect  confidence 
in  the  validity  of  their  title  to  the  land,  which  they  have  transferred 
for  what  it  is  reasonably  worth. 

If  any  imposition  is  practiced  by  the  grantor,  by  the  fraudulent  sup- 
pression of  truth,  or  suggestion  of  falsehood,  in  relation  to  his  title, 
the  grantee  may  have  an  action  on  the  case,  in  the  nature  of  a  writ 
of  deceit;  and  in  such  action  he  would  recover  to  the  full  extent  of 
his  loss.  Har.  &  But.  Notes  to  Co.  Litt.  348a,  tit.  "Warranty";  1 
Fonb.  Eq.  366 ;   1  Com.  Dig.  236,  A,  8.     *     *     * 

My  opinion,  therefore,  is,  that,  in  this  case,  the  plaintiff  is  entitled 
to  recover  the  consideration  money  expressed  in  the  deed,  with  the 
interest,  and  the  costs  of  suit  following  the  eviction,  and  no  more.^* 

5  4  The  concurring  opinions  of  Kent,  0.  J.,  and  Spencer,  J.,  are  omitted. . 
Thompson  and  Yates,  JJ.,  concurred. 

See,  further,  accord:  Brandt  v.  Foster,  5  Iowa,  287  (1857) ;  King  v.  Gilson, 
32  111.  348,  83  Am.  Dec.  269  (1863);  Hertzog  v.  Hertzog's  Adm'r,  34  Pa.  418 
(18.59).     See,  contra,  Park  v.  Bates,  12  Vt.  381,  36  Am.  Dec.  347  (1840). 

Parsons,  C.  .T.,  in  Gore  v.  Brazier,  3  Mass.  523,  3  Am.  Dec.  182  (1807),  said: 

"By  the  ancient  common  law  the  remedy  on  a  warranty  was  by  voucher  or 
warrantia  chartte,  and  the  recomi)ense  was  other  lauds  to  the  value  at  the 
time  tlie  warranty  was  made ;  but.  when  the  warrantor,  on  being  vouched, 
entered  into  the  warranty  generally,  he  was  bound  to  enter  other  lands  to 
the  value  of  the  lauds  lost  at  the  time  he  entered  into  the  warranty.    *     *    ♦    A 


582  DAMAGES  IN  CERTAIN  SPECIFIC  ACTIONS.  (Part    6 

BROOKS  V.  BLACK. 

(Supreme  Court  of  Mississippi,  1890.     68  Miss.  161,  8  South.  332,  11  L.  R.  A. 
176,  24  Am.  St.  Rep.  259.) 

Brooks  conveyed  the  land  to  Spencer,  the  consideration  being  $6,296. 
Black  became  a  purchaser  at  a  sale,  under  a  power  contained  in  a 
deed  of  trust  executed  by  Spencer,  for  $1,000.  He  conveyed  a  one- 
half  interest  in  the  land  to  Mrs.  Spencer.  They  were  subsequently 
ejected  under  a  paramount  title,  and  he  now  seeks  to  recover  from 
Brooks  one-fourth  the  consideration  paid  by  Spencer,  with  costs  and 
attorney's  fees  expended  in  defending  the  ejectment  suit,  of  which 
action  Brooks  had  not  been  notified. 

Cooper,  J.'*''  *  *  *  Among  the  first  cases  in  which  the  liability 
of  a  vendor  to  his  vendee  for  breach  of  the  warranty  for  quiet  posses- 
sion was  considered  were  Staats  v.  Ten  Eyck,  3  Caines  (N.  Y.)  112, 
2  Am.  Dec.  254,  and  Pitcher  v.  Livingston,  4  Johns.  (N.  Y.)  1,  4  Am. 
Dec.  229.  It  was  contended  for  the  plaintiffs  in  these  cases  that  the  cov- 
enant was  one  of  indemnity,  and  therefore  that  the  measure  of  damages 
should  be  the  value  of  the  land  at  the  time  of  the  breach.     *     *     * 

The  argument  for  the  plaintiffs  was  rested  upon  the  rule  of  dam- 
ages in  breaches  of  personal  covenants  in  other  instances,  but  the  court 
rejected  the  contention,  and  adopted,  by  analogy,  the  measure  of 
damages  applied  in  the  common-law  action  of  warrantia  chartse,  and 
in  suits  for  the  breach  of  the  covenant  of  seisin,  viz.,  the  value  of  the 
land  determinable  by  the  price  paid  the  vendor;  and,  since  the  ven- 
dee was  liable  to  the  real  owner  for  mesne  profits,  he  was  also  entitled 
to  interest  on  the  purchase  money  for  the  time  for  which  such  mesne 
profits  might  be  recovered  against  him.  The  measure  of  damages 
established  in  these  cases  has  been  so  generally  adopted  in  other  states 
as  to  have  become  almost  universal,  and  it  would  be  superfluous  to 
cite  authorities  in  its  support.     *     *     * 

Another  proposition  may  be  confidently  stated  as  supported  by  an 
equally  uniform  current  of  authority,  that  the  covenant  for  quiet 
enjoyment  runs  with  the  land,  and  passes  to  all  subsequent  owners 
claiming  in  the  chain  of  title.  The  purchaser  of  land  gets,  by  opera- 
tion of  law,  not  only  the  land,  but  also  the  covenant  of  the  first  ven- 
dor, and  that  as  well  where  the  covenant  is  by  its  words  to  the  vendee 
only,  as  where  it  is  with  him  and  his  assigns.  When  we  come  how- 
ever to  the  precise  question  now  presented,  which  is  whether  a  remote 
vendee  may  recover  from  the  remote  vendor  the  purchase  money  paid 
by  the  first  vendee,  or  is  limited  to  the  amount  paid  by  himself  to 

personal  action  of  covenant  broken  was  early  adopted  [instead]  by  our  ancestors  ; 
and  the  general  practice  has  been  to  give  a  sum  of  money  equal  to  the  value 
of  the  land  at  the  time  of  the  eviction,  which  was  a  breach  of  the  covenant. 
*  *  *  The  plaintiff  in  this  action  ought  to  recover  the  value  of  the  estate 
at  the  time  of  the  eviction." 

6  5  Part  of  the  opinion  is  omitted,  and  the  statement  of  facts  is  rewritten. 


Ch.  2)  IN    CONTRACTS    RESPECTING    REALTY.  583 

his  vendee,  we  find  direct  conflict  in  the  decisions,  and  so  far  as  we 
have  found  the  cases,  they  are  nearly  equal  in  number  on  each 
side.     *     *     * 

When  it  is  conceded  that,  by  his  covenant,  a  vendor  binds  himself 
to  return  the  purchase  price  he  receives  in  the  contingency  of  a  failure 
of  the  title  conveyed,  and  that  this  obligation  is  assigned,  by  opera- 
tion of  law,  to  whoever  may  succeed  to  the  title,  it  would  seem  to 
follow,  as  a  corollary,  that  the  recovery  by  whomsoever  had,  ought  to 
be  equal  to  the  obligation.     *     *     * 

It  is  quite  generally  held  that,  by  the  covenant  for  quiet  enjoyment, 
the  grantor  binds  himself  to  pay,  in  event  of  failure  of  title,  the  then 
value  of  the  land,  which  value  is  determined  by  the  price  paid.  Ap- 
preciation by  natural  causes,  or  by  improvements  put  upon  the  property 
bv  the  vendee,  does  not  enlarge  his  liability ;  nor  is  it  decreased  by 
depreciation  in  value  from  any  cause.  By  legal  intendment  the  obliga- 
tion is  as  though  the  covenantor  should  say  to  the  covenantee :  "You, 
or  the  person  succeeding  to  the  title  I  convey,  shall  hold  the  land,  or 
if  you  cannot,  by  reason  of  title  in  another,  the  money  I  have  receiv- 
ed shall  be  restored  in  lieu  of  the  land."  We  are  unable  to  perceive 
any  principle  upon  which  this  obligation  shall  be  diminished  because 
of  the  price,  in  consideration  of  which  it  may  be  assigned.  We  there- 
fore conclude  that  the  obligation  of  the  covenantor  is  the  same  to  the 
assignee  that  it  was  to  the  covenantee,  and,  being  such,  is  governed  by 
the  same  measure  of  damages.     *     *     * 


PHILLIPS  V.  REICHERT. 

(Supreme  Court  of  Indiana,  ISGl.     17  Ind.  120,  79  Am.  Dec.  463.) 

Graddy  sold  a  lot  for  $600,  of  which  amount  the  defendant  paid 
$450  cash  and  $150  in  the  form  of  a  note,  which  was  indorsed  to  plain- 
tiffs, and  on  which  this  action  was  brought.  The  defendant  pleaded 
an  eviction  from  a  part  of  the  lot  by  the  holder  of  the  paramount  title, 
and  that  such  portion  was  of  peculiar  value  to  him,  as  being  fitted  for 
the  purposes  of  a  beer  cellar,  his  business  being  that  of  a  brewer;  that 
Graddy  was  aware  of  the  purpose  of  defendant,  in  making  the  pur- 
chase, to  so  utilize  such  portion  of  the  lot ;  and  that  the  lot  was  worth 
$200  less  to  the  defendant  by  reason  of  the  eviction.  The  court  found 
that  the  relative  general  value  of  such  portion  of  the  lot,  taking  the 
entire  purchase  price  as  the  value  of  the  entire  lot,  was  $30. 

WoRDEN,  J.^^  *  *  *  -yy-g  think,  in  principle,  the  fact  that  land 
was  bought  for  a  particular  purpose,  which  was  known  to  the  vendor, 
can  make  no  difference  in  respect  to  the  rule  of  damages  for  a  breach 
of  the  covenants.  The  purpose  for  which  the  land  was  bought  does 
not  enter  into  the  covenants.     They  bind  the  covenantor  that  he  is 

68  Part  of  the  opinion  is  omitted,  and  tlie  statement  of  facts  is  rewritten. 


584  DAMAGES   IN   CERTAIN   SPECIFIC   ACTIONS.  (Part    6 

seised  of  the  land,  and  that  he  will  warrant  and  defend  the  title,  or 
in  default  thereof,  that  he  will  return  the  purchase  money  and  inter- 
est; or,  if  the  title  fails  in  part,  that  he  will  return  a  ratable  propor- 
tion of  the  purchase  money  and  interest.  The  fact  that  the  land  was 
bought  for  a  particular  purpose  cannot  have  the  effect  of  increasing 
the  liability  thus  imposed  by  the  covenants.  If  the  land  was  sold  in 
good  faith,  and  without  fraud,  the  vendor  supposing  he  had  title  to 
the  whole,  no  reason  is  perceived  why  he  should  be  held  to  a  greater 
degree  of  liability  on  his  covenants  than  if  he  had  not  known  the  pur- 
pose to  which  the  purchaser  intended  to  apply  it.     *     *     * 


GREENVAULT   v.   DAVIS. 
(Supreme   Court   of   New  York,    1843.    4   Hill,    G43.) 

Davis  sold  to  Price  by  a  warranty  deed  in  which  the  consideration 
was  expressed  as  $500,  who  in  turn  for  $500  conveyed  to  the  plaintiff 
by  a  warranty  deed.  The  plaintiff  was  dispossessed  by  one  Blodgett, 
who  derived  title  through  a  foreclosure  sale  under  a  mortgage  given 
by  Eddy,  through  whom  the  defendant  derived  his  title.  Judgment 
for  the  consideration  money  expressed  in  the  deed. 

Bronson,  J.  ''^  *  *  *  Was  the  defendant  at  liberty  to  show  that 
the  consideration  paid  for  the  land  by  Price  was  less  than  the  sum 
expressed  in  the  deed?  I  think  not.  That  the  consideration  clause 
in  a  deed  is,  as  a  general  rule,  open  to  explanation  by  parol  proof,  has 
been  fully  settled  in  this  and  most  of  the  other  states.  The  cases  on 
this  subject  were  elaborately  reviewed  in  McCrea  v.  Purmort,  16 
Wend.  460,  30  Am.  Dec.  103.  But  there  are  exceptions  to  the  general 
rule,  and  this  case,  is,  I  think,  among  the  number.     *     *     * 

In  Morse  v.  Shattuck,  i  N.  H.  229,  17  Am.  Dec.  419,  the  action  was 
upon  the  covenant  of  seisin  in  a  deed  which  expressed  a  consideration 
of  $900,  and  for  the  purpose  of  reducing  the  damages  the  defendant 
was  allowed  to  prove  that  the  consideration  actually  paid  was  only 
$100.  And  in  a  like  action,  where  the  consideration  expressed  in  the 
deed  was  only  $1,800,  the  plaintiff  was  allowed  to  enhance  the  dama- 
ges by  proving  that  the  consideration  actually  paid  was  $2,800.  Bel- 
den  v.  Seymour,  8  Conn.  304,  21  Am.  Dec.  661.  This  was  held,  by 
three  judges;  Bissell,  J.,  giving  no  opinion,  and  Hosmer,  C.  J.,  dis- 
senting. There  is  one  view  of  the  question  involved  in  these  two 
cases — and  I  have  met  with  no  other  decision  to  the  like  effect — 
which  was  not  noticed  by  either  of  the  learned  courts,  but  which  is, 
I  think,  entitled  to  a  good  deal  of  weight.  Whatever  be  the  price 
actually  paid  for  the  land,  the  parties  may  enter  into  such  stipulations, 
in  relation  to  the  title  as  they  think  proper.  Covenants  may  be  wholly 
omitted,  or  they  may  be  so  framed  as  to  entitle  the  grantee  to  recover 

67  Part  of  the  opinion  is  omitted,  and  the  statement  of  facts  is  rewritten. 


Ch.  2)  IX    CONTTwVCTS    RESPECTING    REALTY.  585 

either  more  or  less  than  he  paid  in  case  he  shall  be  evicted.  When 
the  deed  contains  no  covenant  but  that  of  seisin  or  general  warranty, 
the  consideration  is  not  inserted  as  a  mere  matter  of  form,  nor  for 
the  sole  purpose  of  giving  eflfect  and  operation  to  the  deed ;  but  it  is 
inserted  for  the  further  purpose  of  fixing  the  amount  of  damages  to 
which  the  grantee  will  be  entitled  in  case  he  is  evicted.  Taking  the 
consideration  clause  and  the  covenant  together,  we  find  the  agreement 
to  be  that,  in  case  the  title  fails,  the  grantor  will  pay  and  the  grantee 
receive  the  particular  sum  specified  in  the  deed;  and  the  one  party 
cannot  be  required  to  pay  more,  nor  the  other  to  receive  less,  than 
that  sum,  without  a  palpable  violation  of  the  contract.  At  least,  such 
are  my  present  impressions,  though  my  brethren  are  inclined  to  a 
different  conclusion.  But  it  is  not  now  necessary  to  decide  the  question. 

In  both  of  the  cases  which  have  been  mentioned  the  question  arose 
between  the  original  parties  to  the  contract.  The  grantee  sued  his 
immediate  grantor.  But  here  the  defendant's  grantee  has  conveyed 
to  the  plaintiff,  who  has  been  evicted,  and  he  sues  as  assignee  on  a 
covenant  running  with  the  land.  And,  whatever  the  rule  might  be  if 
the  question  were  between  the  original  parties  to  the  deed,  the  de- 
fendant is  not  at  liberty  to  set  up  this  defense  against  the  plaintifif. 
The  original  parties  knew,  of  course,  what  was  the  true  consideration 
for  the  grant;  but  it  is  not  so  with  third  persons.  They  have  no 
means  of  knowing  what  consideration  was  paid  but  from  what  the 
parties  have  said  by  the  conveyance.  The  defendant  covenanted  with 
Price  and  his  assigns.  When  he  inserted  the  consideration  and  cove- 
nant in  the  deed,  he  virtually  said  to  any  one  who  might  afterwards 
come  in  as  assignee  that  he  had  received  the  whole  $500,  and  would 
stand  bound  to  that  extent  that  the  title  should  not  fail.  The  plaintiff 
acted  upon  that  assurance,  and  parted  with  his  money,  and  the  de- 
fendant should  not  now  be  heard  to  gainsay  the  admission.  It  is 
against  good  conscience  and  honest  dealing  to  set  up  this  defense, 
and  the  defendant  is  estopped  from  doing  it.  Welland  Canal  v.  Hath- 
away, 8  Wend.  480,  24  Am.  Dec.  51;  Dezell  v.  Odell,  3  Hill,  221,  38 
Am.  Dec.  628.     *     *     * 

Many  titles  have  been  received  upon  the  strength  of  covenants  run- 
ning with  the  land,  and,  whatever  may  be  the  rule  as  between  the 
immediate  parties  to  the  deed,  it  would  work  the  grossest  injustice 
to  allow  the  covenantor  to  go  into  the  question  of  how  much  was  ac- 
tually paid  for  the  land  when  the  title  has  failed  in  the  hands  of  an 
assignee,     *     ♦     * 


586  DAMAGES  IN  CERTAIN  SPECIFIC  ACTIONS.  (Part   6 

RICHARDS  V.  IOWA  HOMESTEAD  CO. 
(Supreme  Court  of  Iowa,  1876.     44  Iowa,  304,  24  Am.  Rep.  745.) 

Beck,  J,^^  *  *  *  The  several  deeds  upon  which  the  actions 
are  respectively  founded  are  in  the  form  of  conveyances  commonly 
used  in  this  state.  The  only  covenant  therein  binds  the  grantor  "to 
warrant  and  defend  the  title  against  all  persons  whomsoever,"  which 
implies  all  the  usual  covenants  in  deeds  of  conveyance  in  fee  simple. 
Van  Wagner  v.  Van  Nostrand,  19  Iowa,  422.     *     *     * 

In  each  case  the  court  instructed  the  jury  that  under  the  evidence 
the  plaintiff  was  entitled  to  recover  the  consideration  actually  paid 
by  him  to  the  defendant  for  the  land,  with  interest.  Upon  the  trials 
defendant  offered  to  introduce  evidence  showing  the  sums  paid  by 
the  plaintiff  in  each  case  to  acquire  the  paramount  title  to  the  land, 
it  being  shown  that  each  plaintiff  had  acquired  such  title.  The  evidence 
was  excluded.     *     *     * 

One  holding  lands  under  a  deed  of  warranty  may,  at  his  peril, 
acquire  a  paramount  title  in  defense  of  his  possession,  and  in  a  proper 
action  recover  of  the  grantor  in  such  deed  upon  his  covenants  therein. 
Thomas  v.  Stickle,  32  Iowa,  71.  The  right  of  recovery  in  such  a  case 
is  limited  to  the  amount  of  damage  actually  sustained  by  the  grantee, 
which  the  authorities  hold  is  the  sum  paid  for  the  paramount  title,  not 
exceeding  the  consideration  of  the  deed  upon  which  the  action  is 
brought.     *     *     * 

Plaintiffs'  counsel  claim  that  the  rule  is  only  applicable  to  the  case 
where  the  title  to  a  part  of  the  land  covered  by  the  deed  failed,  or 
when,  for  some  other  reason,  the  covenant  of  seisin  is  not  wholly 
broken.  But  if  there  be  a  total  failure  of  title,  and  a  total  breach  of 
the  covenant,  the  measure  of  damages,  though  the  grantee  has  bought 
in  the  paramount  title,  is  the  consideration  paid  for  the  land,  with 
interest. 

The  answer  to  this  position  may  be  brief.  As  we  have  seen,  the 
grantee  may  protect  his  possession  by  the  purchase  of  the  paramount 
title,  and  this  is  constructive  eviction,  which  will  enable  him  to  recover 
upon  the  covenant  of  the  deed.  Thomas  v.  Stickle,  supra;  Rawle, 
Cov.  281.  The  law  will  render  him  compensation  in  damages  for  the 
loss  he  has  sustained  by  eviction.  It  will  give  him  nothing  more  than 
compensation.  That  loss  is  the  sum  he  paid  for  the  paramount  title. 
To  the  extent  of  the  consideration  paid  for  the  land,  which  is  the 
limit  of  the  grantor's  liability  on  his  covenant,  he  may  recover  his 
loss  in  a  proper  action.     *     *     *  so     Reversed. 

68  Part  of  the  opinion  is  omitted. 

60  See,  also,  McGary  v.  Hastings,  39  Cal.  3G0,  2  Am.  Rep.  456  (1870). 


Ch.  2)  IN    CONTRACTS    RESrECTIXG    REALTY.  587 

(C)  Breach  of  Covenants  against  Incnmbrances,i 

HARRINGTON  v.  MURPHY. 
(Supreme  Judicial  Court  of  Massachusetts,  1872.     109  Mass.  299.) 

Contract,  for  breach  of  the  defendant's  covenant  of  warranty 
against  incumbrances. 

Morton,  J.®°  It  appears  from  the  report,  that  the  only  incumbrance 
which  the  plaintiff  proved  was  the  existence  of  an  inchoate  right  of 
dower  in  a  part  of  the  estate  conveyed  by  the  deed.  It  was  decided 
by  this  court,  after  full  consideration,  in  Shearer  v.  Ranger,  22  Pick. 
44:7,  that  an  inchoate  right  of  dower  is  an  existing  incumbrance 
amounting  to  a  breach  of  a  covenant  against  incumbrances ;  and  that 
decision  was  approved  in  the  recent  case  of  Bigelow  v,  Plubbard,  97 
Mass.  195.  It  follows  that  the  plaintiff  is  entitled  to  maintain  this 
action. 

But  we  are  of  opinion  that  the  ruling  of  the  presiding  judge,  di- 
recting a  verdict  for  the  plaintiff  for  fifty  dollars,  was  erroneous. 
The  plaintiff  offered  no  evidence  of  damage,  except  that  he  had  paid 
an  auctioneer  fifty  dollars  for  selling  the  estate  at  auction,  and  that  the 
purchaser  refused  to  complete  the  purchase  upon  discovering  this 
incumbrance.  Such  an  expense  to  the  covenantee  is  not  the  immediate 
consequence  of  the  breach  of  the  covenant.  It  is  too  remote  and  in- 
direct to  be  an  element  of  damages. 

The  covenant  was  broken  as  soon  as  the  deed  was  delivered  to  the 
plaintiff,  and  an  action  then  accrued  to  him  for  such  breach.  Clark 
V.  Swift,  3  Mete.  390.  The  general  rule  of  damages  is,  that,  if  the 
covenantee  has  extinguished  the  incumbrance,  he  may  recover  the 
reasonable  expenses  incurred  in  doing  so ;  if  he  lies  by  without  doing 
so,  and  has  not  been  disturbed  in  the  enjoyment  of  the  estate  convey- 
ed, he  can  recover  only  nominal  damages.  If  he  cannot  remove  the 
incumbrance,  the  measure  of  damages  is  a  just  compensation  for  the 
direct  injury  resulting  from  it.  Chapel  v.  Bull,  17  Mass.  213  ;  Har- 
low V.  Thomas,  15  Pick.  66;  Batchelder  v.  Sturgis,  3  Cush.  201; 
Wetherbee  v.  Bennett,  2  Allen,  428.  In  the  case  at  bar,  the  plaintiff 
has  not  been  disturbed  in  the  enjoyment  of  the  estate,  and  has  not  paid 
anything  to  extinguish  the  incumbrance.  Upon  this  state  of  the  evi- 
dence, it  was  erroneous  to  instruct  the  jury  that  he  was  entitled  to  re- 
cover the  sum  of  fifty  dollars.     *     *     * 


MITCHELL  et  al.  v.  STANLEY  et  al. 
(Supreme  Court  of  Errors  of  Connecticut,  1877.     44  Conn.  312.) 

The  plaintiffs  purchased  of  the  defendants  an  undivided  two-thirds 
of  a  tract  of  land  for  $5,000,  the  deed  containing  the  usual  covenants 
«o  Part  of  the  opinion  is  omitted. 


588  DAMAGES   IN   CERTAIN   SPECIFIC   ACTIONS.  (Part    6 

of  warranty  and  seisin  and  against  incumbrances.  A  prior  owner  had 
granted  an  easement  of  passage  along  such  tract  to  the  owners  of  a 
canal  abutting  thereon.  It  was  found  as  a  fact  that  the  land  was  worth 
actually  $750  less  than  it  would  have  been  if  it  had  been  free  from 
incumbrances.  However,  the  right  of  passage  had  been  exercised 
only  a  few  times.    The  court  entered  judgment  for  but  $10. 

Granger,  J."  *  *  *  \Ye  think  the  plaintiffs  are  entitled  to 
recover  the  larger  sum.  The  case  finds  that  they  paid  full  value  for 
the  land,  and  that  by  reason  of  the  incumbrance  the  land  was  worth 
$750  less  than  it  would  have  been  without  it.  They  therefore  have 
sustained  a  loss  of  $750,  and  the  defendants  are  bound  by  their  cove- 
nant to  make  good  this  loss,  it  being  the  actual  damage  the  plaintiffs 
have  sustained  by  reason  of  the  breach  of  covenant.  It  is  laid  down 
as  law  in  many  of  the  cases  cited  in  the  defendants'  brief,  that  the 
plaintiff  in  cases  of  this  sort  is  entitled  to  recover  actual  damage,  and 
the  defendants  insist  that  the  $10  is  the  only  actual  damage  that  the 
plaintiffs  have  sustained.  It  is  true  that  this  is  the  only  direct  dam- 
age they  have  received  from  the  exercise  of  the  right  of  way.  But 
is  this  the  only  actual  damage?  We  think  not.  The  incumbrance  is 
permanent  and  perpetual  and  the  estate  of  the  plaintiffs  forever  bur- 
dened with  this  servitude,  which  they  have  no  power,  as  a  matter  of 
right,  to  remove,  and  which  diminishes  the  value  of  their  land  to  the 
amount  of  $750.  The  true  rule  of  damage  we  think  is  well  stated  in 
2  Washburn  on  Real  Property  (2d  Ed.)  730,  as  follows:  "If  the 
incumbrance  be  of  a  permanent  character,  such  as  a  right  of  way,  or 
other  easement  which  impairs  the  value  of  the  premises,  and  cannot 
be  removed  by  the  purchaser  as  a  matter  of  right,  the  damages  will 
be  measured  by  the  diminished  value  of  the  premises  thereby  occasion- 
ed." This  rule  is  sustained  by  cases  cited  in  the  plaintiffs'  brief.  Weth- 
erbee  v.  Bennett,  2  Allen  (Mass.)  428;  Woodbury  v.  Luddy,  14 
Allen  (Mass.)  6,  92  Am.  Dec.  731;  Harlow  v.  Thomas,  15  Pick. 
(Mass.)  69;  Rawle  on  Covenants,  291;  Sedgwick  on  Damages  (6th 
Ed.)  199  ;  Hubbard  v.  Norton,  10  Conn.  435.  We  think  that  the  above 
rule  is  clearly  applicable  to  this  case,  and  is  decisive  of  it.  There 
can  be  no  doubt  that  $750  is  the  actual  damage  sustained  by  the  plain- 
tiffs, as  much  so  as  if  there  had  been  a  breach  of  the  covenant  of  sei- 
sin, and  the  quantity  of  land  described  in  the  deed  had  fallen  short  to 
the  amount  of  $750.  No  one  would  question  but  that  the  defendants 
would  be  bound  in  that  case  to  pay  that  amount.  Again,  if  the  in- 
cumbrance had  been  a  mortgage  and  the  plaintiffs  had  been  obliged 
to  pay  $750  to  remove  it,  there  can  be  no  doubt  that  this  sum  would 
be  the  measure  of  damage.  We  can  see  no  difference  in  the  result  to 
a  plaintiff,  whether  this  loss  is  occasioned  by  failure  of  title  to  a  por- 
tion of  the  land,  or  by  his  having  to  pay  more  money  to  remove  a  mort- 
gage, or  by  his  property  being  rendered  less  valuable  by  reason  of  the 
incumbrance.     *     *     * 

61  Tart  of  the  opiuiou  is  omitted,  aud  tlie  statement  of  facts  is  rewritten. 


Cll.  2)  IN    CONTRACTS    RESPECTING    REALTY.  589 

CLARK  V.  ZEIGLER. 

(Supreme  C!ourt  of  Alabama,  1885.     79  Ala.  346.) 

SoMKRViLLE,  J.°^  The  question  for  decision  is  as  to  the  correct 
rule  for  the  measure  of  damages  in  an  action  on  a  covenant  of  war- 
ranty, when  only  a  certain  portion  of  the  land  covered  by  the  warran- 
ty is  subject  to  incumbrance.  In  October,  188.3,  the  defendant,  Clark, 
conveyed  to  the  plaintiff,  Zeigler,  three  hundred  and  twenty  acres  of 
land,  with  warranty  of  title.  At  the  time  of  this  conveyance,  forty 
acres  of  the  tract  were  subject  to  an  incumbrance  which  defendant 
had  created,  several  years  previous,  in  favor  of  Wadsworth,  by  con- 
veying to  him  the  right  to  enter  and  cut  all  of  the  "saw  timber"  on 
this  particular  forty  acres.  Under  this  license,  Wadsworth  entered, 
and  cut  over  three  hundred  trees,  while  the  plaintiff  was  in  possession, 
and  against  his  objection. 

If  there  had  been  a  failure  of  title  to  the  whol^  tract  of  three  hun- 
dred and  twenty  acres,  resulting  in  an  eviction  of  the  vendee,  who  is 
here  the  plaintiff,  the  measure  of  damages,  in  an  action  based  on  the 
broken  covenant  of  warranty,  would  be  the  purchase  money,  or  origi- 
nal consideration,  with  interest  and  the  costs  of  the  ejectment  suit 
added.  Kingsbury  v.  Milner,  69  Ala.  502.  Our  decisions,  like  those 
of  many  of  the  other  states,  have  made  no  distinction  between  cove- 
nants of  seisin,  or  of  title,  and  covenants  of  warranty — the  rule  in 
each  being  the  same.  Bibb  v.  Freeman,  59  Ala.  612.  In  some  states, 
the  measure  of  damages  has  been  held  to  be  the  value  of  the  land  at 
the  time  of  the  conveyance,  with  interest,  whether  this  sum  be  either 
more  or  less  than  the  actual  purchase  money ;  and  in  others,  the  full 
value  at  the  time  of  eviction,  w^hatever  may  have  been  its  apprecia- 
tion or  depreciation.  The  weight  of  authority  is  conceived  to  be  favor- 
able to  the  rule  adopted  in  our  more  recent  decisions,  limiting,  in 
ordinary  cases,  the  right  of  recovery  to  the  purchase  money,  with  in- 
terest and  the  costs  of  suit.  2  Greenl,  Ev.  §  26i;  2  Parsons,  Contr. 
225,  note  (n).  The  justice  of  this  rule  seems  to  consist  in  the  protec- 
tion afforded  the  covenantor  against  any  rapid  increase  in  value  of 
the  lands,  by  reason  of  the  discovery  of  mineral  wealth,  or  from  other 
accidental  causes,  and  the  loss  he  might  sustain,  amounting  in  many 
instances  to  absolute  ruin,  by  the  erection  of  expensive  improvements 
by  the  vendee  on  the  purchased  premises.  Its  injustice  consists  in 
the  fact,  that  it  fails  frequently  to  indemnify  the  covenantee  against 
the  actual  damages  which  he  has  sustained  by  the  breach  of  covenant, 
and  following  as  the  apparent  natural  and  proximate  consequence. 

For  the  latter  reason,  the  courts  have  seen  fit  to  limit  the  principle, 
so  as  to  make  it  applicable  only  to  real  estate,  and  not  to  the  sale  of 
chattels.  In  some  instances,  and  with  much  reason,  cases  have  been 
excepted  from  its  operation,  where  the  vendor  has  acted  with  fraud, 

•2  Part  of  the  opinion  is  oniittod. 


590  DAMAGES   IN  CERTAIN  SPECIFIC   ACTIONS.  (Part    6 

or  in  bad  faith,  or  even  knew  that  he  had  no  title  at  the  time  of  his 
sale,  or  agreement  to  sell ;  a  distinction  being  made  between  his  in- 
ability to  make  a  good  title,  and  his  sheer  refusal.  2  Add.  Contr. 
(Morgan's  Ed.)  §  529;  3  Parsons,  Contr.  230;  Pinkston  v.  Huie,  9 
Ala.  252.  In  Snodgrass  v.  Reynolds,  decided  at  the  present  term 
[79  Ala.  452,  58  Am.  Rep,  601],  we  declined  to  apply  this  general 
rule,  in  an  action  by  a  lessee  against  a  lessor  for  breach  of  covenant 
to  put  the  plaintiff  in  possession,  the  measure  of  recovery  in  such  case 
being  held  to  be  the  value  of  the  lease  or  term. 

Here,  however,  there  is  no  failure  of  title  to  the  whole  tract,  which 
was  the  subject  of  sale,  and  no  eviction  of  the  vendee  as  to  any  por- 
tion of  it.  There  is  only  a  partial  defect  of  title  as  to  forty  acres,  or 
about  one-eighth  fractional  part  of  the  whole.  It  is  well  settled, 
where  there  is  an  entire  failure  of  title  as  to  any  fractional  part  of  a 
tract  sold,  the  recovery  for  this  defect  will  be  in  proportion  to  the 
value  of  this  part,  and  not  to  its  mere  area  or  quantity.  As  said  by 
Chancellor  Kent,  in'  Morris  v.  Phelps,  5  Johns.  (N.  Y.)  49,  4  Am. 
Dec.  323,  "the  law  will  apportion  the  damages  to  the  measure  of  value 
between,  the  land  lost  and  the  land  preserved."  In  ascertaining  such 
proportion,  it  was  held  in  Bibb  v.  Freeman,  59  Ala.  612,  619,  that  the 
whole  tract  should  be  rated  at  its  cost  value — the  original  purchase 
money.  The  calculation  would  be  an  easy  one  of  arithmetical  propor- 
tion. The  damages  for  an  entire  failure  of  title  to  forty  acres,  of  a 
tract  of  three  hundred  and  twenty  acres,  for  example,  would  be  an 
amount  which  would  bear  the  same  arithmetical  proportion  towards 
the  purchase  money,  as  the  real  value  of  the  forty  acres  would  to  the 
real  value  of  the  entire  tract  of  three  hundred  and  twenty  acres. 

The  principle  is  not  of  easy  or  convenient  application,  where  there 
is  a  mere  incumbrance  on  a  part  of  the  land,  without  failure  of  title 
in  toto  as  to  such  part.  The  purpose  of  all  damages,  not  exemplary 
or  punitive,  is  compensation,  or  recompense,  for  the  injury  actually 
suffered  by  the  plaintiff.  The  damage  here  suffered,  and  for  which 
a  recovery  should  be  allowed,  is  the  diminished  value  of  the  whole 
tract  of  land,  the  title  of  which  the  defendant  warranted,  by  reason  of 
the  incumbrance ;  or,  in  other  words,  the  difference  between  the  value 
of  the  whole  tract,  if  the  title  were  good,  and  its  value  as  depreciated 
by  the  incumbrance.  This  rule  had  been  recognized  as  far  back  as 
Gray  v.  Briscoe,  Noy,  142,  where  a  copyhold  estate  had  been  sold  as 
a  freehold,  with  a  covenant  that  the  vendor  was  seized  in  fee.  The 
measure  of  damages,  on  suit  by  the  covenantee,  was  held  to  be  the 
difference  between  the  value  of  a  freehold  and  a  copyhold  estate.  So, 
in  Bronson  v.  Coffin,  108  Mass.  175,  11  Am.  Rep.  335,  where  land  was 
incumbered  by  a  perpetual  obligation,  in  the  nature  of  an  easement, 
by  which  the  owner  was  always  to  maintain  a  fence  adjacent  to  a 
railroad  running  through  his  farm,  the  proper  measure  of  damages  for 
breach  of  covenant  against  incumbrances  was  held  to  be  a  just  com- 
pensation for  the  real  injury  resulting  from  such  incumbrance,  esti- 


Ch.  2)  IN    CONTKACTS    RESPECTING    REALTY.  B91 

mated  by  the  difterence  in  the  fair  market  value  of  the  estate  by  rea- 
son of  the  existence  of  such  defect  of  title.  A  sufficient  protection 
is  afforded  the  vendor,  by  restricting  the  amount  of  damages  allowed 
to  be  recovered  to  the  entire  purchase  money,  with  interest.  We 
readily  perceive,  that  a  strong  argument  can  be  made  in  favor  of  the 
view,  that  the  recovery  ought  to  be  limited  to  the  amount  which  would 
have  been  recovered,  if  the  entire  title  of  the  incumbered  portion  had 
failed ;  for  it  would  seem,  in  this  case,  that  the  plaintiff  ought  not  to  re- 
cover more  damages  for  the  sale  by  the  defendant  of  the  timber  on  the 
forty  acres,  than  he  would  for  the  sale  of  the  fee-simple  interest  in  it. 
So,  on  the  other  hand,  it  could  be  urged  with  equal  force,  that  the 
damage  would  be  the  same,  ordinarily,  whether  the  trees  were  cut  from 
a  part  of  the  land,  or  miscellaneously  from  all  parts,  provided  the 
number  and  kind  of  trees  cut  were  in  each  case  the  same.  Making 
choice  between  two  difficulties,  we  prefer  to  adopt  the  simpler  and 
more  convenient  rule,  which,  as  we  have  said,  is  to  compensate  the 
plaintiff  for  the  estimated  diminution  in  value  of  his  entire  tract  of 
land,  by  reason  of  the  incumbrance,  from  the  time  of  the  breach  of 
covenant,  with  interest  and  costs  of  suit,  not,  however,  to  exceed  the 
purchase  money  paid  for  the  whole  tract,  with  interest.  If  the  grantee 
had  paid  off,  or  rather  purchased  in  this  incumbrance,  he  would  have 
been  entitled  to  recover  of  the  grantor  what  he  had  reasonably  expend- 
ed in  thus  discharging  it,  at  least  to  an  amount  not  exceeding  the  pur- 
chase or  consideration  money  and  interest.  3  Parsons,  Contr.  228, 
note  (u);  4  Kent's  Com.  176;  Dimmick  v.  Lockwood,  10  Wend.  (X. 
Y.)  142.  And  this  sum  would  seem  to  be  a  close  approximation,  if 
not  a  just  measure  of  the  diminished  value  of  the  premises,  because 
it  was  the  cost  of  making  the  title  what  it  would  have  been  had  there 
been  no  incumbrance.     *     *     *  ^' 


II.  Vendee's  Failure  to  Take  Title. 
LAIRD  V.   mi. 

(Court  of    Exchequer,   1841.     7    Mees.   &    W.    474.) 

Action  in  assumpsit  by  a  vendor  against  a  vendee,  who  had  been  let 
into  possession  under  a  contract  to  purchase,  but  who  did  not  complete 
the  same.  The  plaintiff  sought  to  recover  the  entire  purchase  price 
of  £4,125.  Rolfe,  B.,  allowed  the  plaintiff  to  recover  only  £750.  as  dam- 
ages for  the  breach  of  the  contract  by  the  defendant.  Rule  to  show 
cause  why  the  damages  should  not  be  increased  to  £4,125.* 

Parke,  B.    The  measure  of  damages,  in  an  action  of  this  nature,  is 

6  3  See.   also,   Delaversne  v.   Norris,  7  Johns.   (N.  Y.)  SHS,   5  .\m.   Dec.  2S1 
(1811) ;    Guthrie  v.  Russell,  4G  Iowa,  2G9,  2G  Am.  Rep.  135  (1877). 
•The  statenieut  of  facts  is  rewritteu. 


592  DAMAGES  IN  CERTAIN  SPECIFIC  ACTIONS.  (l^art    6' 

the  injury  sustained  by  the  plaintiff  by  reason  of  the  defendants  not 
having  performed  their  contract.  The  question  is,  how  much  worse  is 
the  plaintiff  by  the  diminution  in  the  value  of  the  land,  or  the  loss  of 
the  purchase  money,  in  consequence  of  the  nonperformance  of  the 
contract?  It  is  clear  he  cannot  have  the  land  and  its  value  too.  A 
party  cannot  recover  the  full  value  of  a  chattel,  unless  under  circum- 
stances which  import  that  the  property  has  passed  to  the  defendant,  as 
in  the  case  of  goods  sold  and  delivered,  where  they  have  been  abso  • 
lutely  parted  with,  and  cannot  be  sold  again.  The  direction  of  my 
Brother  Rolfe,  therefore,  was  quite  correct. 
Rule  refused. 


McGUINNESS  v.  WHALEN. 

(Supreme  Court  of  Rhode  Island,  1SS9.     16  R.  I.  558,  18  Atl.  158,  27  Am.  St. 

Rep.  763.) 

Action  of  assumpsit,  pending  on  demurrer  to  the  declaration.  The 
defendant  bid  $3,100  at  an  administrator's  sale  for  a  parcel  of  realty, 
paying  down  $150,  but  had  failed  to  pay  the  balance.  The  administra- 
tor subsequently  put  the  tract  up  again  at  auction,  and  sold  the  same 
for  the  highest  bid,  $2,150.  The  costs  of  such  second  sale  were  $10.17. 
The  declaration  demanded  judgment  for  $990.17. 

DuRP'EE,  J.^*  *  *  *  fhg  contract  which  the  defendant  entered 
into  when  he  made  his  bid  was  a  contract  to  pay  the  price  bid  by  him 
for  the  premises  upon  receiving  a  deed  thereof,  and,  if  on  tender  of  the 
deed  he  refused  to  complete  the  payment,  he  committed  a  breach  of 
said  contract,  and  laid  himself  liable  to  an  action  upon  it  for  damages. 
In  such  action  the  measure  of  damage  is  the  loss  to  the  vendor  from 
the  default  of  the  vendee,  and  it  may  be  that  the  jury,  upon  proof  of 
the  second  sale,  would  find  the  damages  to  be  the  difference  between 
the  two  bids  and  the  expense  of  the  second  sale ;  but  the  question  would 
be  purely  one  of  damages,  and  they  would  not  be  shut  up  to  that 
amount.  McCombs  v.  McKennan,  2  Watts  &  S.  (Pa.)  216,  37  Am. 
Dec.  505.  In  order  to  make  the  vendee  liable  in  assumpsit  for  such 
difference  and  expense,  in  case  of  his  default,  it  should  be  made  a 
condition  of  the  sale  that  in  such  case  the  property  should  be  resold, 
and  the  vendee  held  to  pay  such  difference  and  expense.     *     *     * 

The  plaintiff  contends  that  the  mode  of  declaring  here  used  is  prop- 
er, because  the  sale  was  judicial,  and  in  such  sales  the  defaulting  ven- 
dee is  liable  for  the  deficiency  on  resale,  whether  the  terms  of  sale 
so  provide  or  not.  An  administrator's  sale,  however,  under  our  stat- 
utes, is  not  a  judicial  sale,  as  was  decided  by  Judge  Story  in  Smith 
v.  Arnold,  5  Mason,  414,  420,  Fed.  Cas.  No.  13,004.     *     *     * 

Demurrer  sustained.®^ 

64  Part  of  the  opinion  is  omittpd.  and  the  statement  of  facts  is  rewritten. 
05  Accord,  illustratin.?  the  American  rule:     Old  Colonv  Ry.  Co.  v.  Evans, 
U  Gray  (Mass.)  25,  GG  Am.  Dec.  391  (185G) ;    nogan  v.  Kyle,  7  Wash.  595,  35 


Ch.  2)  LOAN,    INDEMNITY,    AND    INSURANCE    CONTRACTS.  593 


SECTION   4.— LOAN,   INDEMNITY,   AND   INSURANCE 

CONTRACTS. 


BETHEL  V.  SALEM  IMPROVEMENT  CO. 

(Supreme  Court  of  Appeals  of  Virginia,  1896.     93  Va.  354,  25  S.  E.  304,  33 
L.  R.  A.  602,  57  Am.  St.  Rep.  808.) 

The  defendant  company  agreed  to  purchase  of  plaintiff  1,500,000 
bricks,  to  be  burned  for  it  by  plaintiff.  After  plaintiff  had  manufactur- 
ed 803,491  bricks  the  defendant  notified  the  plaintiff  that  it  would  not 
receive  any  more,  and  it  did  not  pay  for  those  already  manufactured, 
excepting  to  a  small  amount.  Plaintiff  seeks  to  recover  a  profit, 
which  he  alleges  would  have  been  made,  of  $3  per  thousand  on  the 
bricks  unburned,  and  also  to  recover  the  balance  due  on  the  purchase 
price  of  those  completed.  A  verdict  for  $1,403.04  for  plaintiff  was 
set  aside  by  the  lower  court,  and  the  plaintiff  complains  thereof.  The 
ground  for  such  action  was  the  giving  of  an  instruction  authorizing 
the  recovery  of  the  profits  claimed. 

Keith,  P.^^  *  *  *  'j^j^g  failure  to  pay  the  money  is  the  cause 
alleged  in  the  instruction,  that  forced  the  plaintiffs  to  stop  the  manu- 
facture of  the  bricks,  and  which  entitles  the  plaintiffs  to  recover,  not 
only  for  the  bricks  manufactured  by  them  according  to  said  contract, 
but  for  the  profit  on  the  difference  between  the  number  of  the  bricks 
so  manufactured  by  them,  and  the  1,500,000  bricks  manufactured  ac- 
cording to  the  terms  of  the  contract,  to  be  ascertained  by  placing  the 
bricks  at  the  price  fixed  in  the  contract,  and  deducting  therefrom  the 
cost  of  the  bricks  as  shown  by  the  evidence.    For  the  breach  of  con- 

Pac.  399,  38  Am.  St.  Rep.  910  (18JM) ;    Allen  v.  Mohn,  86  Mich.  328,  49  N. 
W.  52,  24  Am.  St.  Rep.  12G  (1891). 

Covenants  of  Landlord  and  Tenant.— For  the  general  measure  of  dam- 
ages for  failure  of  the  landlord's  covenant  of  quiet  enjovment,  see  Poposkey 
V.  Munkwitz,  G8  Wis.  322.  32  N.  W.  35,  60  Am.  Kep.  858  (1887);  Smith  v. 
Wunderllch,  70  111.  426  (1873) ;  Allison  v.  Chandler,  ante,  p.  249.  The  rule 
that  only  nominal  damages  are  recoverable,  under  Flureau  v.  Thornhill.  2 
W.  Bl.  1078  (1775),  in  this  class  of  cases,  is  probably  no  longer  existent.  Cohu 
v.  Norton,  57  Conn.  480,  18  Atl.  59.5,  5  L.  R.  A.  572  (1889).  For  the  application 
of  the  rules  of  Hadley  v.  Baxendale,  9  Exch.  341  (1854),  and  of  "certainty" 
to  cases  between  landlord  and  tenant,  see  Hodges  v.  Fries,  34  Fla.  63.  15 
South.  682  (1894);  Hall  v.  Horton,  79  Iowa,  352.  44  N.  W.  569  (1890), 
Bostwick  v.  Losey,  67  Mich.  554,  35  N.  W.  246  (1887),  and  U.  S.  T.  Co.  v. 
O'Brien,  143  N.  Y.  284.  38  N.  E.  266  (1894).  The  rule  of  avoidable  conse- 
quences is  applicable.  Fisher  v.  Goebel,  40  Mo.  475  (1867) ;  Myers  v.  Burns. 
35  N.  Y.  269  (1866) ;  Cook  v.  Soule,  56  N.  Y.  420  (1874).  For  the  measure  of 
damages  in  case  a  tenant  fails  to  perform  his  covenants,  see  Massie  v.  State 
National  Bank  of  Vernon,  11  Tex.  Civ.  Ajip.  280,  32  S.  W.  797  (1881),  and 
Watriss  v.  First  N.  Bank  of  Cambridge,  130  Mass.  343  (1881). 

0  6  Part  of  the  opinion  is  omitted,  and  the  statement  of  facts  is  rewritten. 
Gilb.Dam.— 38 


594  DAMAGES   IN   CERTAIN  SPECIFIC  ACTIONS.  (Part    6 

tract  to  pay  money,  no  matter  what  the  amount  of  inconvenience  sus- 
tained by  the  plaintiff,  the  measure  of  damages  is  the  interest  of  the 
money  only.    Wood's  Mayne,  Dam.  (1st  Am.  Ed.)  p.  15.     *     *     * 

This  is  the  ordinary  case  of  a  failure  to  comply  with  a  contract  to 
pay  money  at  a  stipulated  time.  In  such  cases  the  measure  of  dam- 
ages for  the  breach  of  the  contract  is  the  principal  sum  due,  and  legal 
interest  thereon.  To  make  a  defendant  responsible  for  the  profits 
which  might  have  accrued  to  the  plaintiff  by  the  use  of  the  money  in 
addition  to  the  interest  would  be  harsh  and  oppressive,  and  should 
not  be  sanctioned  by  the  court,  unless  the  plaintiff  can  bring  his  case 
within  some  well-recognized  exception  to  the  rule.     *     *     *  ^^ 


LOWE  v.  TURPIE  et  al. 

(Supreme  Court  of  Indiana,  1806.     147  Ind.  652,  44  N.  E.  25,  47  N.  E.  150, 

37  L.  R.  A.  233.) 

Lowe  contracted  to  pay  certain  debts,  liens,  and  incumbrances  on 
property  held  by  him  as  security  and  belonging  to  the  Turpies,  but  aft- 
erward refused  to  do  so.  The  realty  was  subsequently  sold  to  pay 
these  obligations,  and  the  Turpies  sue  for  damages  by  reason  thereof. 
They  were  aware  of  Lowe's  refusal  to  perform  prior  to  the  time  of 
the  bringing  of  the  suits  to  enforce  the  incumbrances. 

Monks,  J.^*  *  *  *  It  is  clear,  we  think,  that  the  measure  of 
damages  for  the  breach  by  appellant  of  his  agreement  to  advance  mon- 
ey to  pay  liens,  etc.,  set  forth  in  the  finding,  is  the  same  as  for  breach 
of  a  contract  to  loan  money  direct.  *  *  *  It  is  the  rule,  settled 
beyond  controversy,  that  the  damages  to  be  recovered  must  be  the 
natural  and  proximate  consequences  of  the  breach  of  the  contract. 
Damages  which  are  remote  or  speculative  cannot  be  recovered. 
*  *  *  When  one  is  indebted  to  another,  and  fails  to  pay  the  same 
when  due,  the  damages  for  the  delay  in  payment  are  provided  for  in 
the  allowance  of  interest.  This  is  the  measure  of  damages  adopted 
by  the  law  in  all  actions  by  the  creditor  against  his  debtor.     *     *     * 

Appellees  admit  the  measure  of  damages  for  the  failure  of  a  debtor 
to  pay  money  when  due  to  be  as  stated,  but  insist  that  where  the  ob- 
ligation to  pay  money  is  special,  and  has  reference  to  other  objects 
than  the  mere  discharge  of  debts, — as  in  this  case,  to  advance  or  loan 
money  to  pay  taxes  and  discharge  liens, — damages  beyond  interest 
for  delay  of  payment,  according  to  the  actual  injury,  may  be  recovered ; 
citing  1  Suth.  Dam.  p.  164,  §  77,  where  the  rule  stated  by  appellees 
is  approved.  The  author,  however,  in  the  same  section,  says :  "Where 
one  person  furnishes  money  to  discharge  an  incumbrance  upon  the 

67  A  failure  to  loan  money  as  per  contract  may  justify  the  giving  of  sub- 
stantial damages,  if  it  cannot  be  obtained  elsewhere  by  the  borrower.  M.  & 
O.  Bank  v.  Cook,  49  Law  Times  R.  (N.  S.)  674  (18S3). 

88  Part  of  the  opinion  is  omitted,  and  the  statement  of  facts  is  rewritten. 


Ch.  2)  LOAN,    INDKMMTY,    AND    INSURANCE    CONTRACTS.  595 

land  of  the  person  furnishing  the  money,  and  the  person  undertaking 
to  discharge  it  neglects  to  do  so,  and  the  land  is  lost  to  the  owner  by 
reason  of  the  neglect,  the  measure  of  damages  may  be  the  money  fur- 
nished, with  interest,  or  the  value  of  the  land,  according  to  circumstan- 
ces. If  the  landowner  has  knowledge  of  the  agent's  failure  in  time 
to  redeem  the  land  himself,  the  damages  will  be  the  money  furnished, 
witii  interest.  But  if  the  landowner  justly  relies  upon  his  agent  to 
whom  he  has  furnished  money  to  discharge  the  incumbrance,  and  the 
land  is  lost  without  his  knowledge,  and  solely  through  the  fault  of  the 
agent,  the  latter  will  be  liable  for  the  value  of  the  land  at  the  time  it 
was  lost."  See  Fontaine  v.  Lumber  Co.,  109  Mo.  55,  18  S.  W.  1147, 
32  Am.  St.  Rep.  6^8. 

In  Blood  V.  Wilkins,  43  Iowa,  565,  Blood  was  the  owner  of  certain 
land  in  Jones  county,  and  conveyed  the  same  to  Wilkins  as  security 
for  money  advanced  and  to  be  advanced  by  Wilkins,  and  applied  in 
payment  of  certain  mortgages  and  tax  liens  upon  the  property.  Part 
of  the  money  was  paid  out  directly  by  Wilkins  in  discharge  of  liens, 
and  a  part  was  retained  by  him.  At  the  time  of  the  loan  the  land  had 
been  sold  for  taxes,  but  the  period  for  redemption  had  not  yet  expired. 
The  amount  borrowed  was  enough  to  discharge  all  liens,  and  to  re- 
deem from  said  sales.  Wilkins,  after  the  execution  of  said  deed  given 
as  security,  retained  in  his  hands  the  money  necessary  to  redeem,  un- 
der an  agreement  with  Blood  that  he  would  redeem.  Wilkins  failed 
to  redeem,  and  tax  titles  accrued  against  the  land,  whereby  it  was  lost 
to  Blood,  except  40  acres.  The  court,  in  speaking  of  the  measure  of 
damages,  said :  "There  only  remains  to  be  considered  what  is  the  meas- 
ure of  liability.  When  one  person  furnishes  the  money  to  another  to 
discharge  an  incumbrance  from  the  land  of  the  person  furnishing  the 
money,  and  the  person  undertaking  to  discharge  the  incumbrance  neg- 
lects to  do  it,  and  the  land  is  lost  to  the  owner  by  reason  of  the  incum- 
brance, the  measure  of  damages  may  be  the  money  furnished,  with 
interest,  or  the  value  of  the  land  lost,  according  to  circumstances.  If 
the  landowner  has  knowledge  of  his  agent's  failure  in  time  to  redeem 
the  land  himself,  his  damages  will  be  the  money  furnished,  with  inter- 
est. But  if  the  landowner  justly  relies  upon  his  agent,  to  whom  he 
has  furnished  money  to  discharge  the  incumbrances,  and  the  land  is 
lost  without  his  knowledge,  and  solely  through  the  fault  of  the  agent, 
then  the  agent  will  be  liable  for  the  value  of  the  land  lost."  This  lan- 
guage was  adoj)ted  by  the  author  of  Sutherland  on  Damages,  in  stating 
the  rule.    See  1  Suth.  Dam.  p.  1G4,  §  77.     *     *     * 

We  think  the  rule  concerning  the.  measure  of  damages  in  cases 
where  one  person  furnishes  the  money  to  another  to  discharge  liens 
on  the  land  of  the  one  furnishing  the  money  is  correctly  stated  in 
Blood  V.  Wilkins,  supra.  In  an  action  for  breach  of  a  contract  to 
loan  money  to  pay  liens  or  incumbrances,  no  more  than  nominal  dam- 
ages can  be  recovered  unless  the  facts  showing  special  damages  are 
alleged  and  proven.     Turpie  v.  Lowe,  supra.     When  the  person  who 


596  DAMAGES   IN   CERTAIN   SPECIFIC   ACTIONS.  (Part    6 

contracted  to'  make  the  loan  neglects  or  refuses  to  do  so,  and  the  own- 
er is  compelled  to  procure  the  money  elsewhere,  the  measure  of  dam- 
ages is  the  difference,  if  any,  between  the  interest  he  contracted  to 
pay,  and  what  he  was  compelled  to  pay  to  procure  the  money;  not 
exceeding,  perhaps,  the  highest  rate  allowed  by  law,  2  Sedg.  Dam. 
§  622.  It  is  not  necessary  to  determine  whether  the  measure  of  dam- 
ages for  breach  of  a  contract  to  loan  money  to  pay  liens  in  case  the 
land  is  lost  is  the  same  as  in  a  case  of  the  neglect  of  one  to  whom 
money  is  furnished  by  the  landowner  to  pay  liens  or  incumbrances, 
for  the  reason  that,  if  it  were  conceded  that  the  measure  of  damages 
in  this  case  was  the  same  as  it  would  have  been  had  the  Turpies  fur- 
nished appellant  the  money  to  discharge  all  said  debts  and  incumbran- 
ces, yet,  under  the  facts  as  stated  in  the  special  finding,  the  Turpies 
would  not  be  entitled  to  special  damages.  To  entitle  any  one  to  re- 
cover more  than  nominal  damages  for  a  breach  of  contract  to  loan 
money  to  pay  incumbrances,  it  is  necessary  not  only  to  allege  and  prove 
the  contract  to  loan  the  money,  and  its  breach,  and  that  the  person  who 
agreed  to  make  the  loan  knew  the  purpose  for  which  it  was  to  be  used, 
and  the  necessity  therefor,  but  also  that  the  land  was  lost  to  the  owner 
by  reason  of  such  liens  or  incumbrances,  and  without  his  knowledge, 
and  solely  through  the  fault  of  the  person  who  was  to  loan  the  money, 
or,  if  the  landowner  had  notice  of  the  neglect  or  refusal  to  loan  the 
money,  that  it  was  at  such  a  time  as  to  deprive  him  of  the  opportunity 
to  procure  the  money  elsewhere,  and  pay  said  liens  or  incumbrances, 
or  redeem  the  land,  if  sold.     *     *     * 

In  contemplation  of  law,  money  is  always  in  the  market,  and  pro- 
curable at  the  lawful  rate  of  interest.  And  if  the  owner  of  real  es- 
tate, who  has  a  contract  with  another  to  loan  him  money  to  pay  liens 
or  incumbrances  on  his  land,  who  refuses  to  do  so,  has  knowledge  of 
such  refusal  in  time  to  give  him  an  opportunity  to  seek  for  it  else- 
where, the  fact  that  he  cannot  procure  the  money,  on  account  of  being 
in  embarrassed  circumstances,  will  not  entitle  him  to  recover  more  than 
nominal  damages ;  for  the  reason  that  no  party's  condition,  in  respect 
to  the  measure  of  damages,  is  any  worse,  for  having  failed  in  his  en- 
gagement to  a  person  whose  affairs  are  embarrassed,  than  if  the  same 

result  had  occurred  with  one  in  prosperous  or  affluent  circumstances. 
*     *     * 

It  follows,  therefore,  that  upon  the  facts  found  the  Turpies  were  not 
entitled  to  more  than  nominal  damages  for  the  breach  by  appellant  of 
his  contract  to  loan  money  to  pay  liens  and  incumbrances.     *     *     * 


ASHDOWN  v.   INGAMELLS. 

(Court  of  Appeal,  1880.     5  Exch.   Div.  280.) 
Allin  &  Smith,  traders,  being  in  embarrassed  circumstances,  sold 
their  business  to  the  defendant  upon  the  condition  that  he  should  pay 
certain  debts  owing  by  them.    This  he  failed  to  do  and  left  a  balance 


Ch.  2)  LOAN,    INDEMNITY,    AND    INSUHANCE    CONTRACTS. 


597 


of  il,750.  unpaid.  This  action  is  for  breach  of  the  contract  and  is 
brought  by  the  trustee  in  bankruptcy  of  AlHn  &  Smith.  The  lower 
court  held  that  only  nominal  damages  were  recoverable, 

Bramwell,  L.  J.^^  I  think  that  this  judgment  must  be  reversed. 
With  all  respect  to  my  Brother  Huddlcston,  I  really  cannot  agree  with 
him.  The  defendant  undertook  to  the  liquidating  debtors  to  pay  for 
them  certain  debts.  It  is  alleged  that  he  has  not  done  so,  and  has  refus- 
ed to  do  so.  If  this  allegation  is  correct,  the  contract  has  been  broken. 
It  is  not  a  contract  that  can  be  performed  at  any  time.  If  it  is  not  per- 
formed within  a  reasonable  time  it  is  broken,  and  broken  for  ever. 
The  defendant  cannot  now  perform  it ;  all  that  he  could  do  now  would 
be  to  mitigate  damages  by  making  the  payment  he  agreed  to  make. 
If  the  liquidating  debtors  had  not  become  insolvent,  they  clearly  would 
have  been  entitled  to  recover  by  way  of  damages  the  sum  which  the 
defendant  ought  to  have  paid,  but  did  not  pay.  That  being  the  posi- 
tion of  the  parties,  how  can  it  be  possible  that  the  trustee  in  liquidation 
is  not  entitled  to  recover  the  sum  which  the  defendant  omitted  to  pay? 
The  plaintiff,  who  is  the  trustee  in  liquidation,  must  have  a  right  to 
the  same  amount  as  the  liquidating  debtors  would  have  been  entitled 
to,  if  they  had  continued  solvent  and  had  brought  an  action  for  breach 
of  contract. 

It  is  unnecessary  to  treat  of  the  authorities  at  length ;  but  I  may  say 
that  Carr  v.  Roberts,  5  B.  &  Ad.  78,  cited  on  behalf  of  the  plaintiff, 
is  in  point.  That  was  an  action  upon  a  covenant  to  indemnify.  Here 
the  agreement  is  not  merely  to  indemnify  the  liquidating  debtors  but 
to  pay  the  debts  due  by  them.  The  distinction  however,  is  immaterial. 
At  first  sight  Porter  v.  Vorley,  9  Bing.  93,  appears  to  support  the 
contention  for  the  defendant;  but  it  is  clear  to  me  that  the  Court  of 
Exchequer,  in  Hill  v.  Smith,  12  M.  &  W.  618,  p.  631,  did  not  approve 
of  it ;  and,  moreover,  the  facts  in  it  were  very  different  from  those 
before  us.     *     *     *  ^° 


PORT  V.  JACKSON. 

(Supreme  Court  of  Judicature  of  New  York,  1819.     17  Johns.  239.) 

Barlow  assigned  a  lease  for  1,690  years  to  Port,  at  a  yearly  rental, 
who  in  turn  assigned  it  to  the  defendant,  who  agreed  to  perform  all 
the  covenants  of  the  lease.  The  rent  remained  unpaid  for  over  24 
years.  The  plaintiff  sued  the  defendant  upon  his  covenant  to  pay  the 
rent,  who  pleaded,  inter  alia,  that  he  had  assigned  the  lease  to  one 
Graham  prior  to  the  accruing  of  any  of  such  unpaid  rent,  who  had  en- 

6  8  Part  of  the  opinion  is  omitted. 

7  0  See,  also.  Greene  v.  Goddard,  9  :\Ietc.  (Mass.)  212  dS-l") ;  Watkins 
V.  Morgan.  G  Car.  &  P.  GGl  (1S34) ;  Cook  v.  Fowler,  L.  U.  7  H.  L.  Cas.  27 
(1874):  Swaniscot  Machinery  Co.  v.  Partridge,  25  N.  H.  3G9  (1852).  And  see 
cases  hereinbefore  under  title  ''Interest." 


598  DAMAGES   IN  CERTAIN   SPECIFIC  ACTIONS.  (Part    6 

tered  into  possession  and  had  been  accepted  as  a  tenant.  The  plaintiff 
did  not  allege  that  he  had  paid  the  rent  to  Barlow  or  that  he  had  been 
damnified. 

Van  Ness,  J.'^^  *  *  *  'j^j-^g  validity  of  this  plea  depends  upon  the 
construction  to  be  given  to  the  defendant's  covenant  contained  in  the 
assignment  to  him  by  the  plaintiff,  and  the  nature  and  extent  of  the 
obligation  which  that  covenant  created.  It  is  substantially  a  covenant, 
on  the  part  of  the  defendant,  that  he  will  pay  to  Barlow,  the  lessor, 
the  rent  reserved  by  the  lease,  from  time  to  time,  as  it  shall  become  due. 
It  was  made  with  the  plaintiff  and  he  only  can  maintain  an  action  upon 
it,  in  case  of  nonperformance;  it  is  not  a  covenant  made  with  Barlow, 
the  lessor,  nor  for  his  benefit,  nor  can  it  be  enforced  by  him.  For,  al- 
though the  defendant,  so  long  as  he  continued  to  be  the  owner  of  the 
term  under  the  assignment,  was  liable  for  the  payment  of  the  rent  to 
the  lessor ;  yet  such  liability  was  not  created  by  the  covenant  in  ques- 
tion, but  by  the  covenant  in  the  lease.  He  was  answerable  as  assignee 
of  the  term,  not  upon  any  privity  of  contract,  but  upon  the  privity 
of  estate ;  and  he  would  have  been  equally  liable  if  no  such  covenant 
as  that  in  question  was  contained  in  the  assignment.     *     *     * 

It  is  argued  on  the  part  of  the  defendant,  that,  until  the  plaintiff  has 
paid  the  rent,  he  cannot  maintain  an  action  at  all,  or  in  other  words, 
that  the  covenant  is  not  broken  until  the  plaintiff  has  satisfied  the 
rent.  This  is  a  mistake.  The  covenant  is,  that  the  defendant  shall 
pay  the  rent  to  the  lessor  as  it  falls  due,  and  the  moment  the  day  of 
payment  is  past,  and  the  rent  is  left  unpaid,  the  covenant  is  broken, 
as  well  according  to  its  words  as  its  spirit,  and  the  action  is,  at  all 
events,  maintainable. 

Another  question  then  arises,  what  shall  be  recovered?  Nominal 
damages  only,  or  the  amount  of  the  rent  due?  My  opinion  is,  that 
the  latter  is  recoverable.  The  covenant  is  not  that  the  defendant  shall 
indemnify  the  plaintiff  against  his  own  covenant  in  the  lease,  or  against 
any  damage  which  he  may  sustain,  but  it  is  express  and  positive, 
that  the  defendant  will  pay  the  rent,  for  which  the  plaintiff  continued 
to  be  liable,  notwithstanding  the  assignment;  the  sum  to  be  paid  is 
certain  and  liquidated,  and  the  breach  of  the  covenant  consists  in  the 
nonpayment  of  it,  and  a  plea  of  non  damnificatus  would,  therefore,  be 
no  answer  to  the  declaration.  The  contract  between  the  parties 
amounts  to  a  covenant,  on  the  part  of  the  defendant,  to  pay  a  present 
debt  of  the  plaintiff  which  would  become  payable,  from  time  to  time, 
to  Barlow,  the  lessor;  and  it  would  be  against  all  reason  and  justice 
to  permit  the  defendant  to  say,  that  the  plaintiff  shall  himself  first 
pay  and  advance  the  money,  before  his  right  of  action  against  the  de- 
fendant to  recover  it  arises.  This  was  not  the  intent  of  the  parties, 
nor  the  legal  effect  of  the  contract;  and  the  very  reason  for  inserting 
thJs  covenant  was  to  guard  against  the  necessity  of  the  plaintiff's  pay- 

71  Part  of  the  opiuion  is  omitted,  and  the  statement  of  facts  is  rewritten. 


Ch.  2)  LOAN,    INDEMNITY,    AND    INSUHANCE    CONTRACTS.  599 

ing  the  rent,  before  he  would  be  in  a  situation  to  recover  it  from  the 
defendant,  on  his  default.  If  the  plaintiff  had,  from  time  to  time,  as 
the  rent  fell  due,  paid  it  to  the  lessor,  he  might  have  recovered  it  back 
from  the  defendant  or  his  assignees,  in  case  he  had  assigned  it,  as 
so  much  money  paid  for  his  or  their  use;  and  no  such  covenant  as 
that  contained  in  the  lease  was  necessary,  if  the  construction  of  it  be 
such  as  is  contended  for  on  the  part  of  the  defendant.  The  very  in- 
sertion of  this  covenant  shows,  that  something  more  was  intended,  and 
that,  no  doubt,  was,  that  the  plaintiff  should  have  his  remedy  upon  it 
against  the  defendant,  the  moment  he  exposed  the  plaintiff  to  a  suit 
by  not  paying  the  rent  as  it  fell  due.     ♦     *     ♦ 


VALENTINE  v.  WHEELER. 

(Supreme  Judicial  Court  of  Massachusetts,  1877.    122  Mass.  56G,  23  Am.  Rep. 

404.) 

Ames,  J.""^  It  has  been  said  in  Gilbert  v.  Wiman,  1  N.  Y.  550, 
49  Am.  Dec.  359,  that  there  is  no  branch  of  the  law  in  which  the  deci- 
sions of  the  courts  have  been  more  fluctuating  than  in  regard  to  the 
rule  of  damages  in  suits  on  contracts  in  the  nature  of  indemnity.  It 
is  intimated  in  that  case  that  the  more  just  and  reasonable  rule  would 
be  that  the  damages  should  be  measured  by  the  loss  actually  sustain- 
ed ;  and  it  is  added  that  such  is  the  tendency  of  the  more  modern  de- 
cisions both  in  this  country  and  in  England.  On  the  other  hand,  it  is 
well  established  by  numerous  decisions,  that  upon  a  promise  by  one 
person  to  pay  a  debt  due  from  another,  the  latter  may  maintain  an 
action,  after  the  debt  has  become  due,  without  having  first  paid  it  him- 
self, and  may  recover  the  entire  amount.  Furnas  v.  Durgin,  119  Mass. 
500,  507,  20  Am.  Rep.  341,  and  cases  there  cited. 

If  the  bond  in  the  present  case  is  to  be  treated  merely  as  a  bond  of 
indemnity  against  loss  by  reason  of  his  responsibility  upon  the  drafts 
of  John  P.  Wheeler  &  Co.,  the  plaintiff  is  only  to  recover  the  actual 
amount  of  the  loss.  What  he  had  lost  would  be  the  measure  of  his 
damages.  On  the  other  hand,  if  it  is  to  be  taken  as  a  promise  that 
the  principal  obligor  shall  specifically  pay  these  drafts  at  maturity,  the 
measure  of  damages  might  be  the  entire  amount  of  the  drafts  with 
interest  and  costs. 

Without  undertaking  to  reconcile  the  conflicting  authorities  in 
cases  of  this  general  class,  we  have  come  to  the  conclusion,  upon  the 
facts  and  special  circumstances  of  the  present  case,  that  the  bond  is 
to  be  construed  as  a  contract  of  indemnity  merely,  and  that  the  plain- 
tiff's damages  must  be  limited  to  the  amount  of  his  actual  loss.  Little 
v.  Little,  13  Pick.  42() ;  Aberdeen  v.  Blackmar.  6  Hill  (N.  Y.)  32 -i ; 
Webb  V.  Pond,   19  Wend.    (N.  Y.)   423;    Wallis  v.  Carpenter,  110 

T  2  Part  of  tlie  opiuion  is  omitted. 


600  DAMAGES   IN   CERTAIN   SPECIFIC   ACTIONS.  (Part    6 

Mass.  347.  The  contract,  as  expressed  in  the  bond,  is  that  the  prin- 
cipal obhgor  "shall  well  and  truly  pay,  or  cause  to  be  paid,  all  demands, 
acceptances  or  indorsements  and  obligations  for  which  said  Valentine 
is  in  any  wise  responsible  for  or  on  account  of  said  firm  of  John  P. 
Wheeler  &  Co.,  and  shall  hold  and  save  the  said  Valentine  harmless 
and  free  from  loss  and  inconvenience  on  account  of  any  debt,  claim, 
demand  or  liability  of  the  firm  of  said  John  P.  Wheeler  &  Co."  From 
the  terms  of  the  bond,  we  must  infer  that  the  plaintift''s  acceptance 
of  the  drafts  was  for  the  purpose  of  lending  his  credit  to  that  firm. 
He  was  simply  an  accommodation  indorser  or  guarantor ;  or,  to  state 
the  proposition  more  accurately,  he  stood  in  the  same  position  as  if 
he  had  given  what  is  called  an  accommodation  note  in  order  that  the 
payee  might  use  it  for  his  own  benefit.  If  the  acceptance  of  the  drafts 
had  represented  a  genuine  and  existing  debt  due  from  him  to  the 
drawers,  there  would  have  been  no  occasion  for  the  drawers  to  give 
security  to  the  acceptor  for  their  payment  at  maturity.  The  covenant 
in  the  bond  was  not  an  undertaking,  therefore,  to  pay  a  debt  absolutely 
due  from  Valentine,  but  to  protect  him  against  a  contingent  liability. 
So  far  as  the  parties  to  the  bond  were  concerned,  he  was  only  condi- 
tionally liable  on  the  drafts,  and  was  to  pay  them  if  the  drawer  did 
not.  Even  if  they  were  not  paid  at  maturity,  there  might  be  a  state 
of  facts  in  which  Valentine,  as  an  accommodation  acceptor,  might  him- 
self take  them  up  and  be  relieved  of  any  further  liability  upon  them 
by  the  payment  of  less  than  their  nominal  amount.  That  would  de- 
pend upon  the  use  which  has  been  made  of  them  by  the  party  accom- 
modated. Stoddard  v.  Kimball,  6  Cush.  469.  The  bond  provides, 
not  for  a  debt  due  from  Valentine  to  another  person,  but  for  all  de- 
mands, acceptances,  etc.,  of  the  firm,  for  which  Valentine  is  in  any 
wise  responsible.  The  language  of  the  bond  can  hardly  be  otherwise 
construed  than  as  a  recognition  of  the  fact  that  he  was  a  surety  on 
certain  contracts  of  the  firm,  and  was  to  be  indemnified  and  protected 
as  such.     *     *     * 

The  result,  therefore,  is  that  the  amount  of  the  judgment  in  the 
suit  upon  the  drafts,  with  interest,  is  not  the  true  measure  of  the  plain- 
tiff's damages,  but  that  they  must  be  limited  to  the  amount  of  the 
loss  and  damage  actually  sustained,  which,  as  the  facts  are  presented 
in  the  bill  of  exceptions,  we  understand  to  be  the  sum  of  $500,  with 
interest.     *     *     *^^ 

73  See,  also,  Wicker  v.  Hoppock,  6  Wall.  &4,  18  L.  Ed.  752  (1867);  Farns- 
woi'tli  V.  Boardman,  131  Mass.  115  (1881) ;  Furnas  v.  Durgin,  119  Mass.  500, 
20  Am.  Rep.  341  (1876) ;    Osgood  v.  Osgood,  39  N.  H.  209  (1859). 


Ch.  2)  LOAN,    INDEMNITY,    AND    INSURANCE    CONTRACTS. 


GOl 


ILLINOIS  MUT.  FIRE  INS.  CO.  v.  ANDES  INS.  CO. 

(Supreme  Court  of  Illinois,  1873.     G7  111.  3G2,  16  Am.  Rep.  G20.) 
Sheldon,  J.^*     The  only  question  here  presented  for  decision  is 
as  to  the  amount  of  the  recovery.  ,      ^    .  a  ,u. 

The  ori-inal  insurer  became  liable  to  pay  to  the  first  assured  the 
sum  of  $6'.000  in  consequence  of  the  loss  of  the  subject  matter  o  he 
first  insurance;  but  it  actually  paid  only  $600  1"^""  discharge  of  the 
liability  The  amount  of  the  reinsurance  was  $2,000.  bhall  the  re- 
insured" recover  the  full  $2,000,  or  only  $600,  or  a  pro  rata  part  of  the 

latter  sum '' 

So  far  as  we  are  aware,  the  contract  of  insurance,  or  of  remsur- 
ance,  against  loss  by  fire,  has  uniformly  been  held  to  be  a  contract  of 
indemnitv  not  exceeding  the  sum  insured.  ^      i         .u        _ 

In  the'case  of  an  ordinary  policy  of  insurance,  and  a  loss,  the  sum 
insured  is  the  extent  of  the  insurer's  liability,  not  the  measure  of  the 
assured's  claim.  The  contract  being  one  of  indemnity,  he  is  entitled 
only  to  that,  and  the  actual  loss  sustained  by  the  assured  is  the  measure 
of  indemnitv  to  which  he  is  entitled  where  it  is  less  than  the  sum  in- 
sured So  'if  the  assured  has  parted  with  all  his  interest  in  the  sub- 
iect  insured  before  the  loss  happens,  he  cannot  recover,  for  the  rea- 
son that  the  contract  is  regarded  as  one  for  an  indemnity,  and  he  has 
sustained  no  loss  or  damage.  ,.  , ,     ,  ,u^ 

Althouo-h  the  original  insurer  here  did  become  liable  to  pay  the 
sum  of  $6,000,  that^did  not  turn  out  to  be  the  amount  of  its  actual 
loss  The  actual  loss  and  damage  which  it  sustained  was  $600,  the 
sum  which  it  paid  in  full  discharge  of  its  liability.  That  sum,  given  to 
the  reinsured,  would  make  good  the  loss  sustained  by  reason  of  the  or- 
iginal insurance ;  whereas,  to  allow  a  recovery  of  $2,000  would  enable 
it  to  realize  a  gain  of  $L400  over  and  above  the  actual  damage  it  has 
sustained  It  is  difficult  to  see  how  this  can  be  done  consistently  with 
principle,  under  a  contract  which,  we  apprehend,  this  must  be  admitted 
to  be,  to  indemnify  the  reassured  against  the  loss  it  might  sustain  iroxn 
the  risk  it  had  incurred  in  consequence  of  its  prior  insurance. 

Notwithstanding,  then,  the  adverse  authority  that  is  to  be  found,  we 
are  disposed  to  hold,  on  principle,  as  we  regard  it,  that  $600,  the  sum 
paid  by  the  reinsured  company  in  discharge  of  its  liability  for  $6,000, 
was  the  actual  loss  it  sustained  and  the  extent  of  the  recovery  which 
should  be  had.  And  in  view  of  the  following  special  clause  in  this  poli- 
cy of  reinsurance,  we  are  of  the  opinion  that  the  recovery  in  this  case 
should  be  reduced  even  below  that  sum.  The  clause  is  this:  Loss, 
if  any.  payable  pro  rata,  at  the  same  time  and  in  the  same  manner  as 
the  reinsured  company."  ,  j     •       -i. 

The  only  construction  we  can  well  put  on  this  clause  and  give_  it 
practical  effect,  is  this:    that  the  Andes  Insurance  Company,  the  rein- 

7  4  I'livt  of  the  opinion  is  omitted. 


602  DAMAGES  IN   CERTAIN   SPECIFIC  ACTIONS.  (Part    6 

surer,  was  only  to  pay  at  the  same  rate  as  the  lUinois  Mutual  Fire 
Insurance  Company,  the  reinsured,  should  pay ;  and  as  the  latter  com- 
pany paid  only  ten  cents  on  the  dollar  of  its  insurance,  the  former  com- 
pany is  only  liable  to  pay  at  the  same  rate — that  is,  ten  cents  on  the  dol- 
lar of  the  amount  of  its  reinsurance,  which  would  be  $200.     *     *     *" 


SECTION  5.— BREACH  OF  PROMISE. 


SMITH  V.  WOODFINE. 

(Court  of  Common  Pleas,  1857.     1  C.  B.  [N.  S.]  660.) 

Action  for  breach  of  promise  of  marriage  against  defendant,  a 
brewer,  worth  ilOO,000.  Verdict  for  i3,000.  Motion  for  a  new  trial 
on  the  ground  of  excessive  damages. 

WiLLES,  J.'^*  The  law  as  to  breaches  of  promises  of  marriage  is 
at  least  as  old  as  the  reign  of  William  III,  as  appears  by  the  case  of 
Harrison  v.  Cage  and  Wife,  Carth.  467,  where,  after  verdict  for  the 
plaintiff,  with  £400.  damages,  it  was  moved  in  arrest  of  judgment, 
"because  this  action  would  not  lie  upon  the  promise  of  marriage  made 
by  the  woman,  for,  the  law  doth  not  intend  that  the  man  is  advanced 
by  marriage,  and  therefore  such  a  promise  of  marriage  to  him  is  of 
no  consideration  in  law,  and  by  consequence  no  action  can  be  founded 
thereon ;  but  'tis  otherwise  where  a  man  promiseth  to  marry  a  woman, 
because  marriage  in  the  eye  of  the  law  is  an  advancement  to  the 
woman."  To  which  it  was  answered,  and  so  resolved  per  curiam, 
"that  here  were  reciprocal  promises;  and  therefore,  as  her  promise 
to  him  was  a  good  consideration  to  make  his  promise  obligatory,  so 
by  the  same  reason  his  promise  to  her  was  sufficient  consideration  to 
make  her  promise  binding  in  this  case  as  well  as  in  any  other  mutual 
agreements."  And  the  court  "did  not  allow  that  distinction  between 
the  advancement  of  a  man  and  of  a  woman  in  marriage."  At  the 
end  of  the  case,  the  reporter  adds  this  note:  "Nota.  It  had  been 
moved  before  for  a  new  trial,  because  of  the  excessive  damages ;  but, 
upon  reference  to  the  Chief  Baron  Ward,  who  tried  the  cause,  he 
certified  that  the  promise  of  the  woman  was  well  proved,  and  that  the 
damages  were  more  than  he  expected,  but  that  he  did  not  think  them 

7  5  See,  also.  Limburg  v.  German  Fire  Ins.  Co.  of  Peoria,  ante,  p.  70,  note; 
Ashland  M.  F.  I.  Co.  v.  Honsinjjer,  10  Oliio  St.  10  (18.59);  Commonwealth  Ins. 
Co.  V.  Sennett,  37  Pa.  205,  78  Am.  Dec.  418  (1860).  A  policy  of  life  in- 
surance is  not  a  contract  of  indemnity,  but  an  agreement  to  pay  money  on  the 
happening  of  a  given  event.  Trenton  M.  L.  &  F.  Co.  v.  Johnson,  24  N.  J. 
Law,  at  page  585  (1854) ;  Dalby  v..  I.  &  L.  A.  Co.,  15  C.  B.  365  (1854).  See 
V'ance's  Cases  on  Insurance. 

T8  Part  of  the  opinion  is  omitted. 


Ch.  '2)  IN    BREACH    OF    PROMISE. 


003 


SO  excessive  as  to  set  aside  the  verdict."  The  report  states  that  it  was 
proved  that  the  woman  was  worth  £3,000.  when  the  plaintiff  courted 
her,  and  afterwards  by  the  death  of  her  brother  worth  double  that 
sum.  That  which  was  laid  down  as  law  at  that  time  is  law  at  the 
present  day.  In  Sedg:wick  on  Damages  (2d  Ed.)  p.  208,  it  is  said: 
"The  clear  and  irresistible  result  of  the  authorities,  is,  that  the  damaq-es 
in  actions  of  contract  are  to  be  limited  to  the  consequence  of  the 
breach  of  contract  alone,  and  that  no  regard  is  to  be  had  to  the  motives 
which  induce  the  violation  of  the  agreement."  He  then  proceeds  to 
notice  an  exception  "in  regard  to  damages  recoverable  against  a  vendor 
of  real  estate  who  fails  to  perform  and  convey  the  title,"  And  at 
page  210  he  adds:  "To  the  general  rule  another  exception  also  exists, 
that  of  breach  of  promise  of  marriage.  In  this  action,  though  in  form 
ex  contractu,  yet,  it  being  impossible  from  the  nature  of  the  case  to 
fix  any  rule  or  measure  of  damages,  the  jury  are  allowed  to  take  into 
their  consideration  all  the  circumstances,  and,  provided  their  conduct 
is  not  marked  by  prejudice,  passion,  or  corruption,  they  are  permitted 
to  exercise  an  absolute  discretion  over  the  amount  of  compensation. 
'The  damages  in  this  action,'  says  the  Supreme  Court  of  New  York, 
in  Southhard  v.  Rexford,  6  Cow.  254,  'rest  in  the  sound  discretion  of 
the  jury,  under  the  circumstances  of  each  particular  case.'  And  this 
exception  is  perhaps  one  of  the  strongest  proofs  of  the  general  rule." 
The  learned  author  proceeds  to  cite  American  cases — Torre  v.  Somers, 

2  N.  &  M.  267,  Coryell  v.  Colbaugh,  Coxe,  77.  Stout  v.  Parll,  Coxe,  79, 
Green  v.  Spencer,  3  Mo.  318,  26  Am.  Dec.  672,  and  Hill  v.  Maupin, 

3  Mo.  323 — which,  however,  are  only  echoes  of  what  has  been  decided 
in  our  courts.  Again,  at  page  368,  the  learned  author  says:  "The 
action  for  breach  of  promise  of  marriage,  as  has  been  already  said, 
though  nominally  an  action  founded  on  the  breach  of  an  agreement, 
presents  a  striking  exception  to  the  general  rules  which  govern  con- 
tracts. This  action  is  given  as  an  indemnity  to  the  injured  party  for 
the  loss  she  has  sustained,  and  has  been  always  held  to  embrace  the 
injury  to  the  feelings,  affections,  and  wounded  pride,  as  well  as  the 
loss  of  marriage.  Wells  v.  Padgett,  8  Barb.  (N.  Y.)  323.  From  the 
nature  of  the  case,  it  has  been  found  impossible  to  fix  the  amount  of 
compensation  by  any  precise  rule ;  and,  as  in  tort,  the  measure  of 
damages  is  a  question  for  the  sound  discretion  of  the  jury  in  each  par- 
ticular instance  (Southard  v.  Rexford,  6  Cow.  [N.  Y.]  254),  subject, 
of  course,  to  the  general  restriction  that  a  verdict  influenced  by  preju- 
dice, passion  or  corruption,  will  not  be  allowed  to  stand.  Beyond  this 
the  power  of  the  court  is  limited,  as  in  cases  of  tort,  almost  exclusively 
to  questions  arising  on  the  admissibility  of  evidence  when  offered  by 
way  of  enhancing  or  mitigating  damages.  So,  where  it  appears  that 
the  promise  was  made  by  the  defendant  with  a  view  to  seduce  the 
plaintiff,  this  will  be  allowed  to  go  to  the  jury  in  aggravation.  Paul 
V.  Frazier,  3  Mass.  73,  3  Am.  Dec.  95;  Green  v.  Spencer,  3  Mo.  318, 
26  Am.  Dec.  672;    Hill  v.  Maupin,  3  Mo.  323;    Burks  v.  Shain,  2 


604  DAMAGES   IN   CERTAIN   SPECIFIC   ACTIONS.  (Part    6 

Bibb  (Ky.)  341,  5  Am.  Dec.  616;  Whalen  v.  Layman,  2  Blackf. 
(Ind.)  194,  18  Am.  Dec.  157;  Wells  v.  Padgett,  8  Barb.  (N.  Y.)  323. 
The  contrary  has  been  held  in  Pennsylvania.  Weaver  v.  Bachert,  2 
Pa.  80,  44  Am.  Dec.  159.  But  there  the  improper,  cruel,  and  indecent 
conduct  of  the  defendant  will  go  to  aggravate  the  damages.  Baldy 
V.  Stratton,  11  Pa.  316.  So,  also,  it  is  held  that  the  defendant  may 
shew  in  mitigation  of  damages,  the  licentious  conduct  of  the  plaintiff, 
and  her  general  character  as  to  sobriety  or  virtue,  without  any  limi- 
tation of  time  whatever.  Johnson  v.  Caulkins,  1  Johns.  Cas.  (N.  Y.) 
116,  1  Am.  Dec.  102.  It  is  also  settled,  that,  in  this  action,  dissolute 
conduct  on  the  part  of  the  female  after  the  promise  (or  before  if 
unknown)  discharges  the  contract  altogether.  Indecent  conduct  be- 
fore the  promise,  if  unknown,  to  the  defendant,  or  after  the  promise 
goes  in  mitigation  of  damages.  Boynton  v.  Kellogg,  3  Mass.  189,  3  Am. 
Dec.  122;  Willard  v.  Stone,  7  Cow.  (N.  Y.)  22,  17  Am.  Dec.  496; 
Palmer  v.  Andrews,  7  Wend.  (N.  Y.)  142;  Irving  v.  Greenwood,  11 
E.  C.  L.  412;  Capehart  v.  Carradine,  4  Strob.  (S.  C.)  42.  *  *  * 
Rule  discharged.''^ 


BERRY  V.  DA  COSTA. 

(Court  of   Common    Pleas,   18GG.     L.   R.    1   C   P.   331.) 

Action  for  breach  of  promise.  The  plaintiff  left  her  mother's  home 
under  the  promise  of  marriage  and  resided  at  different  lodgings  with 
the  defendant.  Eventually  she  was  cast  off,  and  the  defendant  mar- 
ried another  woman.    Verdict  for  £2,500. 

WiLLES,  J.''*  A  rule  is  asked  for  in  this  case  upon  two  grounds — 
first,  that  my  Lord  misdirected  the  jury, — secondly,  that  the  damages 
are  excessive.  I  am  of  opinion  that  there  was  no  misdirection.  I  ap- 
prehend, that,  in  ascertaining  the  proper  amount  of  damages  in  an 
action  for  a  breach  of  promise  of  marriage,  the  jury  are  not  limited 
to  the  mere  pecuniary  loss  which  the  plaintiff  has  sustained,  but  may 
take  into  their  consideration  the  injured  feelings  and  wounded  pride 
of  a  woman  to  whom  such  a  wrong  has  been  done.  This  has  been 
so  often  laid  down,  that  I  will  content  myself  with  referring  to  a 
modern  instance,  the  case  of  Smith  v.  Woodfine,  1  C.  B.  (N.  S.)  660, 
in  this  court,  where  all  the  authorities  upon  the  subject  are  cited  and 
considered.  The  supposed  misdirection  consisted  in  the  Lord  Chief 
Justice's  pointing  out  to  the  jury  the  contrast  between  the  former  posi- 
tion of  the  plaintiff  as  the  daughter  of  an  honest  and  respectable 
mother,  and  her  present  degraded  condition  as  the  defendant's  cast-off 
mistress,  and  telling  them  that  they  might  take  that  into  their  consid- 

7T  Earlier  cases  arc  Gough  v.  Farr,  1  Younge  &  J.  477  (1827) ;  Wood  v. 
Hurd.  3  Scott,  3G8  (183G). 

7  8  Only  the  opinion  of  Willes,  J.,  is  here  given,  and  the  statement  of  facts 
is  revv'ritten. 


Ch.  2)  IN    nREACII    OF    PROMISE,  G05 

eration  in  assessing  the  damages.  It  is  impossible  that  the  jury  could 
have  understood  him  to  mean  that  they  were  to  add  to  those  damages 
a  solatium  for  the  outraged  feelings  of  the  mother  and  family  of  the 
plaintiff.  If  that  had  been  the  fair  result  of  the  summing  up,  undoubt- 
edly it  would  have  been  a  misdirection.  The  jury  would  have  no 
right  to  consider  that.  The  summing  up  amounts  to  this — that  the 
damages  which  the  plaintiff  was  entitled  to,  were,  not  merely  the  loss 
she  sustained  in  not  becoming  the  wife  of  a  gentleman  of  property,  but 
that  she  was  also  entitled  to  be  compensated  for  the  aggravation  of 
that  loss  by  reason  of  her  prospects  of  marrying  another  being  materi- 
ally lessened.  I  put  this  in  the  driest  language  I  can  select.  My  Lord, 
no  doubt,  further  intended  to  intimate  to  the  jury  that  in  estimating  the 
amount  of  compensation  due  to  the  plaintiff  for  her  injured  feelings 
and  wounded  pride,  they  might  legitimately  take  into  their  considera- 
tion the  position  of  a  young  girl  who  had  sustained  an  injury  such  as 
this  defendant  had  inflicted  upon  the  plaintiff  in  returning  to  her 
mother's  house,  not  as  a  virtuous  and  respected  member  of  the  family, 
but  compelled  as  it  were  to  skulk  into  the  home  she  had  made  desolate, 
without  daring  to  lift  her  eyes  to  her  parent's  face.  I  use  the  word 
"injury"  throughout,  because  the  mode  of  estimating  the  damages  in 
cases  of  this  sort  stands  upon  a  totally  different  footing  from  that 
which  obtains  in  the  case  of  a  breach  of  an  ordinary  contract  to  de- 
liver or  to  accept  goods.  Then,  as  to  the  amount  of  damages,  the  court 
is  called  upon  to  exercise  an  exceedingly  nice  jurisdiction,  and  to  in- 
terfere with  that  which  is  the  peculiar  and  exclusive  province  of  the 
jury  so  long  as  they  are  not  misled  by  prejudice  or  gross  mistake,  or 
misconduct  themselves.  For  that  also  I  refer  to  Smith  v.  Woodfine, 
1  C.  B.  (N.  S.)  660.  The  jury  there  gave  £3,000.  damages;  the  mo- 
tion took  very  much  the  same  course  as  the  motion  has  taken  upon  the 
present  occasion;  and  the  court  lay  it  down  that  they  will  not  inter- 
fere with  the  discretion  of  the  jury  as  to  the  amount  of  damages,  un- 
less there  has  been  some  obvious  error  or  misconception  on  their  part, 
or  it  is  made  apparent  that  they  have  been  actuated  by  undue  motives. 
It  is  not  suggested  that  there  has  been  any  error  or  misconception  on 
the  part  of  the  jury  here,  or  that  they  have  been  influenced  by  any  un- 
due motives.  The  facts  were  all  before  them,  and  it  was  for  them  to 
pronounce  their  opinion  upon  them.  It  is  suggested  as  a  ground  of 
misconduct  on  the  part  of  the  jury,  that  the  damages  they  have  given 
are,  upon  a  view  of  all  the  circumstances,  outrageously  excessive  and 
disproportionate  to  the  justice  of  the  case.  We  are  not  called  upon  to 
say  whether  or  not  we,  if  sitting  in  the  place  of  the  jury,  would  have 
awarded  so  much,  or  whether  the  substantial  justice  of  the  case  would 
not  in  our  opinion  have  been  satisfied  by  a  somewhat  less  amount.  But 
we  cannot  shut  our  eyes  to  the  fact  that  not  only  has  the  plaintiff  lost 
the  opportunity  of  marrying  a  gentleman  in  a  position  of  life  far  su- 
perior to  her  own,  and  been  deprived  by  the  loss  of  her  virtue  of  the 
opportunity  of  contracting  a  happy  marriage  with  another  man,  but  by 


006  DAMAGES   IN   CERTAIN  SPECIFIC  ACTIONS.  (Part    6 

the  course  taken  at  the  trial  imputations  upon  her  character  were  un- 
sparingly showered  upon  her.  Indeed,  every  endeavor  seems  to  have 
been  made  to  shield  the  defendant  by  heaping  charges  and  insinua- 
tions upon  every  one.  Having  chosen  to  take  that  course,  I  think  it  is 
not  competent  to  the  defendant  now  to  complain  that  the  jury  have 
given  a  larger  amount  of  compensation  than  they  probably  would  have 
given  if  a  different  course  had  been  pursued.  I  must  own  I  think  it 
was  a  case  for  very  considerable  damages;  and  I  cannot  say  what  the 
amount  should  have  been,  though  the  amount  given  is  perhaps  more 
than  I  should  have  felt  disposed  to  give.  Upon  the  whole,  however,  I 
see  no  ground  upon  which  we  can  properly  interfere. 


OSMUN  V.  WINTERS. 
(Supreme  Court  of  Oregon,  1894.     25  Or.  260,  35  Pac.  250.) 
See  ante,  p.  81,  for  a  report  of  the  case. 


CHELLIS  V.  CHAPMAN. 

(Court  of  Appeals  of  New  York,  1891.    125  N.  Y.  214,  26  N.  E.  308,  11  L.  R.  A. 

784.) 

See  ante,  p.  483,  for  a  report  of  the  case.'* 

79  Ames,  J.,  in  Grant  v.  Willey,  101  Mass.  356  (18G9),  said: 

"The  action  in  form  is  an  action  of  contract ;  but  the  plaintiff,  if  she 
proved  her  case,  was  entitled  to  recover  not  merely  an  indemnity  for  her 
pecuniary  loss  and  the  disappointment  of  her  reasonable  expectations  of  ma- 
terial and  worldly  advantages  resulting  from  the  intended  marriage,  but  also 
a  compensation  for  wounded  feelings  and  the  mortification  and  pain  which 
she  had  wrongfully  been  made  to  undergo,  and  for  the  harm  that  had  been 
done  to  her  prospects  in  life.  Few,  if  any,  of  these  elements  of  damage  ad- 
mit of  precise  arithmetical  computation,  or  can  be  accurately  measured  by  a 
pecuniary  standard.  From  the  nature  of  the  case,  they  are  peculiarly  within 
the  province  of  the  jury,  who  are  to  form  their  judgment  in  the  light  of  all 
the  circumstances,  whether  of  aggravation  or  extenuation,  that  properly  be- 
long to  the  case." 

See,  also,  Burnett  v.  Simpkins,  ante,  p.  141 ;  Vanderpool  v.  Richardson, 
ante,  p.  481 ;  Alberts  v.  Albertz,  ante,  p.  80,  note ;  Finlay  v.  Churney,  L.  R.  20 
Q.  B.  Div.  494  (1887);  Southard  v.  Rexford,  6  Cow.  254  (182G) ;  Kniffen  v. 
McConnell,  30  N.  Y.  285  (1864);  Denslow  v.  Van  Horn,  16  Iowa,  476  (1864); 
Douglas  V.  Gausman,  68  111.  170  (1873);  Harrison  v.  Swift,  13  Allen  (Mass.) 
144  (1866). 

In  Coolidge  v.  Neat,  129  Mass.  146  (1880),  an  action  of  contract  for  breach 
of  a  promise  of  marriage,  upon  the  question  of  damages  the  judge  instructed 
the  jury:  That  they  were  to  be  computed  on  the  principle  of  indemnity 
and  reasonable  compensation.  That,  as  elements  of  damage,  the  jury  would 
have  the  right  to  consider:  (1)  The  disappointment  of  the  plaintiff's  reason- 
able expectations,  and  to  inquire  what  she  had  lost  by  reason  of  such  dis- 
appointment, and,  for  that  purpose,  to  consider,  among  other  things,  what 
would  be  the  money  value,  or  wordly  advantage,  of  a  marriage  which  would 
have  given  her  a  permanent  home  and  an  advantageous  establisliment.  (2) 
The  wound  and  injury  to  her  affections.  (3)  Whatever  mortification  or  dis- 
tress of  mind  she  suffered,  resulting  from  the  refusal  of  the  defendant  to 
fulfill  his  promise.     That,  in  connection  with  the  question  how  far  she  had 


Ch.  2)  IN  ACTIONS  AGAINST  CARRIERS.  HOT 

SECTION   G.— ACTIONS   AGAINST   CARRIERS. 


COLLARD   V.   SOUTHEASTERN  RY.   CO. 

(Court  of   Exchequer,  18G1.     7   Hurl.   &   N.   79.) 

The  plaintiff,  a  hop  grower  in  Kent,  had  sold  to  Messrs.  Crosier,  of 
the  Borough  Market,  London,  eight  pockets  of  hops,  to  be  delivered 
at  the  Bricklayers'  Arms  Station,  London,  at  £18.  per  cwt.,  according 
to  sample.  The  hops  were  sent  to  the  Pluckley  Station  on  the  de- 
fendants' railway  on  the  20th  of  October,  consigned  to  Messrs.  Crosier, 
whose  carmen  applied  for  them  at  the  Bricklayers'  Arms  Station  on 
the  23d  of  October,  but  was  told  that  they  could  not  be  found.  He  ap- 
plied again  on  the  following  day,  and  received  the  same  answer.  On 
the  29th  of  October  he  called  again,  and  found  them  in  an  open  van. 
On  examination  it  appeared  that  the  hops  in  some  of  the  bags  were 
partially  stained,  apparently  from  lying  in  a  wet  truck.  On  the  same 
day  the  hops  were  removed  to  Messrs.  Crosier 's,  who  refused  to  re- 
ceive them  on  account  of  their  damaged  condition ;  and  by  the  custom 
of  the  hop  market  they  had  a  right  to  reject  them.  The  plaintiff  caus- 
ed them  to  be  dried;  and  when  salable,  which  was  not  until  the  19th 
of  November,  sent  them  to  a  factor,  who  valued  them  at  £S.  per  cwt. 
Between  the  29th  of  October  and  the  19th  of  November  the  market 
price  fell  from  £18.  to  £9.  per  cwt.,  and  the  damage  to  the  hops  caused 
a  further  diminution  in  value  of  £3.  or  £4. ;  but  for  actual  use  by  a 
brewer  the  hops,  when  dried,  were  as  good  as  ever.  Evidence  was 
adduced  on  the  part  of  the  defendant  to  prove  that  the  quantity  of 
hops  actually  damaged  by  the  wet  did  not  exceed  eight  pounds  a  pocket 
in  six  pockets,  and  that  taking  the  value  of  the  hops  at  £18.  per  cwt., 
the  damage  was  covered  by  the  amount  paid  into  court. 

been  wounded  In  her  affections  or  suffered  mortiflcation  or  distress,  the  jury 
mijrht  consider  the  length  of  time  during  which  the  enjiageuieut  had  sub- 
sisted. That  if  a  female  had  been  wantonly  deserted,  after  an  engagement 
of  this  kind,  public  policy  as  well  as  justice  dictated  the  propriety  of  a  legal 
indemnity,  and  if  her  affections  had  been  deeply  implanted,  her  wounded 
spirit,  the  disgrace,  the  insult  to  her  feelings,  the  probable  solitude  which 
might  result  by  reason  of  such  desertion,  after  a  long  courtship,  were  all 
matters  for  their  consideration.  At  the  defendant's  request  the  judge  also 
gave  the  following  instruction:  "It  cannot  be  assumed  that  the  defendant, 
by  associating  with  the  plaintiff,  prevented  her  from  forming  any  other  mar- 
riage alliance  or  engagement  to  marry.  The  plaintiff  might  have  had  no 
other  opportunity  for  marriage,  and  the  defendant  cannot  lie  held  responsible 
for  merely  possible  damage."  The  jury  returned  a  verdict  for  plaintiff  in 
the  sum  of  $3,000;  and  the  defendant  alleged  exceptions.  Ames,  J.,  inter 
alia,  said: 

"Tlie  instructions  given  to  the  jury  were  carefully  guarded,  and  appear 
to  have  lieen  in  exact  conformity  with  the  well-established  rule  in  cases  of 
this  kind." 


608  DAMAGES  IN  CERTAIN  SPECIFIC   ACTIONS.  (Part    6 

The  learned  judge  told  the  jury  that  the  plaintiff  was  entitled  to 
damages  for  the  deterioration  in  the  value  of  the  hops  by  reason  of 
the  wet,  and  also  in  respect  of  the  difference  in  value  which  occurred 
between  the  time  when  they  ought  to  have  been  delivered  and  when 
they  were  rendered  saleable  by  drying.  The  jury  found  a  verdict  for 
the  plaintiff  with  £18.  damages,  beyond  the  amount  paid  into  court, 
in  respect  of  the  depreciation  in  the  quality  of  the  hops,  and  £Go. 
damages  in  respect  of  the  depreciation  in  their  value  by  reason  of 
the  fluctuation  of  the  market.  A  verdict  was  entered  for  both  those 
sums,  and  leave  was  reserved  to  the  defendants  to  move  to  reduce 
the  damages  by  the  sum  of  i65. 

Lush,  in  the  following  term  (April  18th),  moved  for  a  rule  nisi 
accordingly.  He  also  moved,  with  respect  to  the  £18.  damages,  for  a 
new  trial  on  the  ground  of  misdirection.  He  submitted  that  inasmuch 
as  the  hops,  when  dried,  were  as  good  as  ever  for  actual  use,  and  the 
defendants  had  no  notice  that  they  were  for  sale,  the  plaintiff  was 
only  entitled  to  recover  the  value  of  the  small  portion  actually  dam- 
aged, and  which  was  covered  by  the  amount  paid  into  court. ^° 

Martin,  B.^^  We  are  all  of  opinion  that  the  rule  ought  to  be 
discharged.  The  Lord  Chief  Baron,  before  he  left  the  Court,  re- 
quested me  to  state  that  he  was  of  that  opinion.  It  seems  to  me  that 
the  case  is  clear.  We  must  assume  that  the  hops  were  to  be  delivered 
in  London  on  a  certain  day,  and  that  by  reason  of  the  defendants' 
breach  of  duty  they  could  not  be  delivered  until  another  day.  It  was 
proved  that  if  they  had  been  brought  to  market  on  the  proper  day 
they  would  have  fetched  a  certain  price,  but,  not  being  brought  until 
a  later  day,  the  market  price  in  the  meantime  fell,  and  the  value  of 
the  hops  was  diminished  by  the  amount  of  £65.  If  that  be  not  a  di- 
rect, immediate,  and  necessary  consequence  of  the  defendants'  breach 
of  duty,  it  is  difficult  to  understand  what  would  be.  It  is  said  that  the 
defendants  had  no  notice  of  the  purpose  for  which  the  hops  were  sent 
to  London,  but  I  think  that  they  must  have  known  that  they  were 
sent  for  one  of  two  purposes,  either  for  consumption  by  the  person 
to  whom  they  were  sent,  or,  as  was  more  likely  to  be  the  case,  to  be 
sold  for  profit.  It  seems  to  me  that  Hadley  v.  Baxendale,  9  Exch. 
341,  has  no  bearing  on  this  case;  and  I  think  that  Smeed  v.  Ford 
was  correctly  decided.  In  my  judgment  the  plaintiff  is  entitled  to  re- 
cover for  this  damage,  because  it  is  a  direct  and  immediate  loss  con- 
sequent on  the  defendants'  breach  of  duty.     *     *     *  82 

80  This  statement  is  abridged  from  that  found  in  the  original  report. 

81  Only  part  of  the  opinion  of  Martin,  B.,  is  here  reprinted. 

82  See,  also,  O'Hanlan  v.  G.  W.  Ry.,  6  Best.  &  S.  484. 


Ch.  2)  IN    ACTIONS    AGAINST    CAUIUERS.  609 

WATKINSON  V.  LAUGHTON. 
(Supreme   Court   of   New   York,    ISll.     8  Johns.   213.) 

This  was  an  action  of  assumpsit,  on  a  bill  of  lading,  signed  by 
the  defendant,  as  master  of  a  ship.  The  cause  was  tried  at  the  sit- 
tings in  New  York,  before  the  Chief  Justice. 

The  goods  were  shipped  at  Liverpool,  in  good  order,  consigned  to 
the  plaintiff.  On  the  arrival  of  the  ship  in  New  York,  it  was  found 
that  several  of  the  trunks  had  been  opened,  and  the  goods  taken  out ; 
and  it  was  admitted  that  the  goods  had  been  embezzled,  or  otherwise 
lost,  without  any  fraud  on  the  part  of  the  defendant.*^ 

PER  CURIAM.^*  The  rule  of  damages  in  such  a  case  as  the 
present,  does  not  appear  to  have  been  the  subject  of  discussion  and 
decision  in  any  of  the  numerous  commercial  cases  which  have  arisen 
in  the  English  courts.  Perhaps  the  rule  has  been  so  well  understood 
and  settled  in  practice,  as  not  to  be  drawn  into  controversy.  But  as 
that  practice  is  not  stated  in  the  case,  nor  known  to  the  court,  we  must 
govern  ourselves  by  the  general  principles  which  are  established  in 
the  books.  The  case,  in  this  court,  of  Smith  &  Delamater  v.  Richard- 
son, 3  Caines,  219,  is  not  applicable,  as  that  was  not  a  case  of  loss, 
arising  from  the  fraud,  negligence  or  misfortune  of  the  carrier,  in 
the  performance  of  his  trust,  for  the  defendant  there  never  entered 
on  the  undertaking,  and  the  suit  was  for  a  breach  of  contract  in  not 
carrying,  and  the  plaintiffs,  afterwards,  became  their  own  carriers, 
and  lost  the  goods.  There  may  then  be  a  very  material  difTerence  be- 
tween the  two  cases,  as  to  the  reason  and  policy  of  the  rule  of  damages. 
Here  was  an  embezzlement  of  part  of  the  goods,  in  the  course  of  the 
voyage,  and  it  would  seem  to  be  the  rule  of  the  marine  law  in  such 
cases,  that  the  master  must  answer  for  the  value  of  the  goods  missing, 
according  to  the  clear,  net  value  of  goods  of  like  quality,  at  the  place 
of  destination.  All  the  ordinances  and  authorities  declare  this  to  be 
the  rule,  when  the  goods  are  sold  by  the  master,  from  necessity,  in  the 
course  of  the  voyage  (Abb.  on  Ship,  pt.  3,  c.  3,  §  10)  ;  and  why  should 
not  the  same  rule  apply  when  the  goods  are  missing  by  any  other 
means?  The  general  doctrine  is,  that  the  master  must  make  good  the 
loss  or  damage  accruing  to  the  goods  which  he  undertook  to  carr}' 
safely,  for  hire;  and  Pothier  (Charter  Partie,  Nos.  33,  35)  says  that 
the  rule  is  general,  and  applies  to  all  cases  in  which  the  master  is  re- 
sponsible for  missing  goods.  This  is  a  suflficient  authority  for  the  rule, 
if  there  be  no  adjudged  case  or  settled  practice  (and  we  know  of  none") 
to  the  contrary;  especially,  as  the  rule  is  in  furtherance  of  the  general 
policy  of  the  marine  law,  which  holds  the  master  responsible,  as  a 
common  carrier,  for  accidents,  and  all  causes  of  loss,  not  coming  within 

■  8  Thfs  statement  is  abridged  from  ttiat  of  the  official  report, 
»*  Part  of  the  opinion  is  omitted. 
Gii.b.Dam.— 39 


610  DAMAGES   IN   CERTAIN   SPECIFIC  ACTIONS.  (Part   6 

the  exception  in  the  bill  of  lading.  It  takes  away  all  temptation  to 
withhold  a  delivery  of  the  goods,  and  exempts  the  shipper  from  the 
hard  task  of  undertaking  to  detect,  in  every  case,  the  negligence,  fault, 
or  fraud  of  the  carrier ;  and  it  must  be  admitted  that  the  rule  would  be 
highly  just  and  necessary,  if  the  loss  was  imputable  to  either  of  those 
causes.     *     *     * 


McGregor  v.  kilgore. 

(Supreme  Court  of  Ohio,  1834.     6  Ohio  358,  27  Am.  Dec.  260.) 
See  ante,  p.  352,  for  a  report  of  the  case. 


HARVEY  V.  CONNECTICUT  &  P.  R.  CO. 

(Supreme  Judicial   Court   of   IMassachusetts,   1878.     124   Mass.    421,    26   Am. 

Rep.  673.) 

The  plaintiff  informed  the  defendant  that  he  wished  to  make  con- 
tracts with  other  persons  in  Boston  to  sell  railroad  ties,  which  he 
would  transport  to  Boston  by  the  defendant's  line.  The  defendant 
thereupon,  August  31,  1871,  entered  into  a  contract  to  carry  such 
ties  as  plaintiff  should  furnish  for  one  year  at  a  certain  figure.  The 
plaintiff  gave  notice  of  his  contracts  in  Boston  in  May,  1872.  The 
defendant  subsequently  failed  to  transport  the  lumber  presented  to 
it  for  shipment  by  the  plaintiff. 

Endicott,  J.®^  *  *  *  When  a  carrier  receives  goods  for  trans- 
portation, and  fails  to  deliver  them,  the  owner  is  entitled  to  recover 
the  market  value  of  the  goods  at  the  time  and  place  at  which  they 
should  have  been  delivered.  Spring  v.  Haskell,  4  Allen,  112.  And 
where  the  carrier  negligently  delays  the  delivery  of  goods,  he  is  liable 
for  loss  in  their  market  value  during  the  delay.  Cutting  v.  Railway 
Co.,  13  Allen,  381.     *     *     * 

If,  therefore,  the  defendant  had  received  the  ties  for  transportation 
according  to  its  contract,  and  failed  to  deliver  them  at  all,  it  would 
have  been  liable  for  their  market  value  in  Boston  at  the  time  when 
they  should  have  been  delivered ;  or  if  it  had  negligently  delayed  the 
delivery,  it  would  have  been  liable  for  the  diminution  in  their  market 
value  during  the  delay.  It  would  not,  in  either  event,  have  been  lia- 
ble in  damages  for  loss  of  profits  sustained  by  the  plaintiff  under  his 
subsequent  contracts  with  other  parties;  unless  it  can  be  said  that, 
by  reason  of  the  plaintiff's  announcement  that  he  intended  to  make 
such  contracts,  it  was  necessarily  within  the  contemplation  of  the  par- 
ties when  they  made  the  contract  of  transportation,  and  as  the  probable 
consequence  of  its  breach,  that  the  defendant  might  be  liable  for  dam- 

ss  Part  of  the  opinion  is  omitted,  and  the  statement  of  facts  is  rewritten. 


Ch.  2)  IN    ACTIONS    AGAINST    CARUIKRS.  611 

ages  resulting  to  the  plaintiff  from  his  inability  to  fulfill  such  contracts, 
the  terms  of  which  were  not  and  could  not  then  be  disclosed. 

The  damages,  for  which  a  carrier  is  liable  upon  failure  to  perform 
his  contract,  are  those  which  result  from  the  natural  and  ordinary 
consequences  contemplated  at  the  time  of  making  the  contract  of 
transportation ;  and  a  larger  liability  can  be  imposed  upon  him,  only 
when  it  is  in  the  contemplation  of  the  parties  that  the  carrier  is  to  re- 
spond, in  case  of  breach,  for  special  and  exceptional  damages.  In  such 
a  case,  the  extent  and  character  of  the  obligation  he  assumes  should 
be  known  to  the  carrier,  which  in  this  case  was  impossible,  as  the 
contracts  were  not  then  made.  The  mere  knowledge  on  the  part  of 
the  defendant,  that  the  plaintiff  intended  to  make  contracts  for  the 
sale  of  the  ties  to  be  transported,  cannot  impose  a  liability  upon  the  de- 
fendant for  loss  of  profits  on  such  contracts.     *     *     * 

We  are  therefore  of  opinion  there  was  error  in  instructing  the  jury 
that  the  plaintiff  could  recover  damages  for  loss  of  profits  on  his  sub- 
sequent contracts.  As  the  ties  were  not  sent  to  Boston,  the  true  meas- 
ure of  damages  is  the  difference  between  the  market  price  in  Boston 
and  the  market  price  in  Canada  at  the  time  when  the  defendant  should 
have  transported  the  ties  according  to  its  contract,  deducting  therefrom 
the  price  stipulated  in  the  contract  for  transportation.     *     *     * 


ILLINOIS  CENT.  R.  CO.  v.  SOUTHERN  SEATING  & 
CABINET  CO. 

(Supreme  Court  of  Tennessee,  19C0.     104  Tenn.  5G8,  58  S.  "W.  30.3.) 

The  Cabinet  Company  entered  into  a  contract  with  the  rector  of  St. 
John's  Episcopal  Church  at  Petersburg,  Va.,  to  manufacture  and  put 
in  certain  church  pews  at  a  cost  of  $o2-}:;  the  agreement  containing 
a  provision  for  liquidated  damages  at  $10  per  day  for  each  day  of 
delay  after  May  6,  1898.  The  pews  were  shipped  over  the  defendant 
railroad  company's  lines ;  its  agent  being  notified  of  the  nature  of  the 
contract  with  the  church.  The  pews  arrived  24  days  late,  and  the 
cabinet  company  settled  with  the  church  for  $3i4;  a  deduction  of 
$180  being  made  for  the  delay. 

Caldwell,  J.®°  *  *  *  Where  property  is  shipped  to  market 
for  general  sale  to  such  purchasers  as  may  be  obtained,  and  the  car- 
rier unreasonably  and  negligently  delays  the  transportation,  the  meas- 
ure of  damages  for  that  default  is  the  depreciation  in  salable  quality 
and  marlcet  value  of  the  property  at  the  place  of  destination  between 
the  time  when  it  should  have  arrived  and  when  it  did  in  fact  arrive. 
Railroad  Co.  v.  Hale.  85  Tenn.  69,  1  S.  W.  620;  Hutch.  Carr.  §  771; 
3  Wood   Ry.  Law,  1607.     But,  if  the  property  is  sold  at  an  advanta- 

86  p.irt  of  the  opinion  is  omitted,  and  the  statement  of  facts  Is  rewritten. 


012  DAMAGES   IN  CERTAIN   SPECIFIC  ACTIONS.  (Part    6 

geous  price  before  shipment,  on  condition  that  it  be  delivered  within 
a  certain  time,  and  the  carrier,  with  knowledge  of  that  fact,  undertakes 
the  transportation,  and  through  negligence  fails  to  make  the  delivery 
in  time,  and  the  conditional  purchaser  declines  to  receive  the  prop- 
erty on  account  of  the  delay,  the  liability  of  the  carrier  is  measured 
by  the  difference  between  the  market  value  of  the  property  when  it 
arrived  at  the  place  of  destination  and  the  price  at  which  it  was  con- 
ditionally sold  before  shipment.  Deming  v.  Railway  Co.,  48  N.  H. 
455,  2  Am.  Rep.  267;  Hutch.  Cam  §  772.  The  difference  between 
the  modes  of  measuring  the  carrier's  liability  in  the  two  cases  is  due 
to  the  difference  between  its  obligations  and  the  consequences  of 
their  breach.  In  the  former  case  the  obligation  is  general,  and  the 
loss  and  liability  are  general,  while  in  the  latter  case  the  obligation 
is  special,  and  the  loss  and  liability  are  special.  Referring  to  the  car- 
rier's responsibility  for  the  breach  of  a  special  contract  by  delay,  a 
distinguished  author  has  said:  "But  if  the  intended  use  and  application 
of  the  goods  to  be  carried  were  expressly  brought  to  the  notice  of 
the  company's  servants  at  the  time  they  received  them,  or  could  be 
reasonably  inferred  from  circumstances  known  to  them,  so  that  the 
special  use  or  application  might  be  fairly  considered  to  be  within  the 
contemplation  of  both  parties  to  the  contracts,  the  consignor  is  en- 
titled to  recover  the  damages  naturally  resulting  from  his  so  being 
unable  to  use  or  apply  the  goods,  since  both  parties  may  be  said  to 
have  made  this  the  basis  of  the  contract."    3  Wood,  Ry.  Law,  1G07. 

The  contract,  breached  by  the  defendant,  now  before  the  court,  was 
undoubtedly  a  special  one.  The  pews  m  question  were  manufactured 
after  a  peculiar  design,  for  a  particular  church,  under  a  particular 
contract,  of  which  the  defendant  was  distinctly  notified  at  the  time  it 
accepted  them  for  carriage.  The  contract  of  carriage  being  special, 
the  liability  for  its  nonobservance  was  likewise  special,  and  the  plain- 
tiff was  entitled  to  recover  all  damages  naturally  resulting  from  the 
breach,  whatever  the  amount  may  have  been.  The  trial  judge,  in 
that  portion  of  the  charge  heretofore  quoted,  instructed  the  jury,  in 
substance,  that  the  proper  measure  of  the  plaintiff's  recovery,  if  any 
should  be  allowed,  would  be  the  penalty  of  its  contract  with  the  con- 
signee for  the  period  the  pews  were  delayed  beyond  the  time  therein 
stipulated  as  the  required  date  of  delivery,  which,  the  record  shows, 
amounted  to  $180,  the  sum  actually  deducted  by  the  consignee  from 
the  purchase  price  of  the  pews.  That  was  certainly  the  amount  of  the 
plaintiff's  real  loss,  and,  in  view  of  the  notice  given  at  the  time  of  the 
shipment,  it  may  fairly  and  reasonably  be  assumed  to  be  the  exact  ex- 
tent of  the  injury  which  the  plaintiff  and  the  defendant  contemplated 
as  the  natural  result  of  so  long  a  delay  in  the  delivery  of  the 
pews,  and  therefore  the  true  measure  of  damages  recoverable  for  the 
breach.     *     *     * 


Ch.  2)  IN    ACTIONS    AGAINST    CAUUIKRS.  G13 

DEVEREUX  V.  BUCKLEY  et  al. 
(Supreme  Court  of  Ohio,  1877.     34  Ohio  St.  IG,  32  Am.  Rep.  342.) 

GiLMORE,  J.*^  The  action  in  the  court  of  common  pleas  was  not 
brought  upon  any  express  or  special  contract,  but  to  recover  damages 
for  a  breach  of  an  implied  agreement  to  carry,  and  deliver  at  the 
place  of  consignment,  a  large  lot  of  eggs,  within  a  reasonable  time, 
by  a  common  carrier.     *     *     * 

It  may  be  safely  said  that  if  a  common  carrier  is  chargeable  with 
knowledge  that  the  article  carried  is  intended  for  the  market,  and  un- 
reasonably delays  its  delivery,  and  there  is  a  depreciation  in  the  mar- 
ket value  of  the  article  at  the  place  of  consignment,  between  the  time 
it  ought  to  have  been  delivered  and  the  time  it  was  in  fact  delivered, 
such  depreciation  will,  in  the  absence  of  any  special  contract,  constitute 
the  measure  of  damages. 

Was  the  carrier  chargeable  with  such  notice  in  this  case?  We  think 
he  was.  The  anxiety  of  the  plaintiffs  to  obtain  quick  time  on  their 
shipments  of  eggs,  which  was  communicated  to  the  defendants'  agent, 
shows  that,  for  some  reason,  they  regarded  "time"  as  an  important 
element  in  the  shipments.  *  *  *  And  the  reason  why  both  parties 
recognized  the  necessity  of  quick  time  in  the  transportation  of  the  arti- 
cle, was  that  they  undoubtedly  knew  that  in  this  country  the  market 
value  of  eggs  was  liable  to  decline  at  the  season  of  the  year  in  which 
the  shipment  was  made  in  this  case,  and  the  damages  consequent  upon 
such  a  decline  must  have  been  in  the  contemplation  of  both  parties  at 
the  time  the  contract  was  made.     *     *     *  «» 

8  7  Part  of  the  opinion  is  omitted 

8  8  See,  also,  Hadley  v.  Baxendale,  ante,  p.  189;  B.  &  O.  R.  R.  v.  Carr,  ante, 
p.  G7 ;  Green-Wheeler  Shoe  Co.  v.  C.  R,  I.  &  P.  R.  R.  Co..  ante.  p.  171 :  Ilorne 
V.  Midland  R.  R.  Co.,  ante,  p.  195;  Ward's  C.  &  P.  Co.  v.  Elkins.  ante.  p.  240; 
Harris  v.  Panama  V^  R.  Co.,  ante,  p.  341;  Williams  v.  Vand»^rl.ilt.  28  N.  Y. 
217  (1S63J  ;  McKinley  v.  C.  &  N.  W.  R.  R.  Co.,  44  Iowa,  314  (1S7S) ;  Le  Blanche 
V.  L.  &  N.  W.  Ry.,  L.  R.  1  0.  P.  Div.  286  (1876). 


INDEX. 


[the  figures  refer  to  pages.] 


ADVERTTSEMENT, 

measure  of  damages  for  failure  to  Insert,  270,  536. 

AGENT, 

liability  of  principal  in  exemplary  damages  for  acts  of,  see  Exemplary 

Damages. 

AGGRAVATION, 

circumstances  of  as  increasing  allowance  of  damages,  68,  78,  78  n.,  80,  81, 
83.  8G,  118,  143  (II.  v.  O.). 
ALTERNATIVE  AGREEMENTS, 

how  regarded,  43.  48,  53. 

rule  of  least  beneficial  alternative,  51. 

ANIMALS, 

acts  of,  raising  questions  as  to  intervening  cause,  150,  154.  15G,  103  n.,  221. 

ANNOYANCE, 

as  an  element  of  damage,  86,  118. 
see,  also,  Inconvenience. 

ANTICIPATORY  BREACH  OF  CONTRACTT, 

see,  also.  Employe, 
damages  in  case  of,  225  (K.  v.  Y.),  241,  310  to  325. 
duty  to  make  forward  Contracts  in  case  of,  22.j  (K.  v.  T.).  .'^20. 

ARBITRATION, 

damages  for  revocation  of  submission  to,  425  (H.  v.  H.). 

ARREST, 

damages  for  wrongful,  85. 
cousequontial  damages  in,  167, 

ASSAULT  AND   BATTERY, 
aggravation  in,  78,  83,  118. 
exemplary  damages  in,  90,  07,  101,  112. 

mental  suffering  as  an  element  of  damage,  68,  79  (L.  v.  F.). 
mitigation  in.  12G,  128.  120.  131. 
proximate  consequences  of,  173. 
remote  consequences  of,  168  n. 

ASSESSMENT  OF  DAMAGES, 
see  Jury;  Verdict. 

ATTACHMENT, 

measure  of  damages  for  wrongful,  397. 

counsel  fees,  when  allowable  as  an  element  of  damage,  430. 

ATTORNEY'S  FEES, 
see  Counsel  Fees. 

AVAILABILITY  FOR  PARTICULAR  PURPOSE, 

as  an  element  of  damage,  192,  354. 

AVOIDABLE  CONSEQUENCES, 
see,  also.  Mitigation, 
no  recovery  for,  220,  221. 

what  rcquire<l  in  atttunpt  to  avoid.  234.  238  n. 
should  do  only  what  a  reasonable  man  would  do,  236,  240. 

Gilb.Dam.  (615) 


616  INDEX. 

[The  figures  refer  to  pages.] 
AVOIDABLE  CONSEQUENCES— Continued. 

what  required  in  case  of  an  anticipatory  breach  of  contract,  222,  225 

(K.  V.  Y.). 
not  necessary  to  anticipate  wrong,  234,  236  n..  238  n. 
duty  of  vendor  to  resell,  552  (S.  v.  V.),  555,  557.  ^ 

duty  of  purchaser  to  buy  elsewhere,  220,  222,  225  (K.  v.  Y.). 
not  when  he  has  already  paid  purchase  price,  225  (I.  C.  v.  C). 
duty  to  avoid  consequences  by  dealing  again  with  the  defendant,  222,  23.'). 
duty  of  employe  to  secure  re-employment,  228,  232.  233,  313. 
duty  in  other  contracts  to  make  other  similar  contracts,  2o0. 

see,  also.  Anticipatory  Breach, 
duty  to  unrlergo  medical  treatment,  236. 
duty  to  undergo  surgical  operation,  238  n. 
expenses  incurred  in  effort  to  avoid,  see  Expenses. 

BAILEE, 

right  to  sue,  327. 

BENEFITS  CONFERRED, 
see,  also.  Mitigation, 
when  will  go  in  reduction  of  damages,  .104. 
whether  to  be  deducted  when  from  third  party,  401,  403,  404,  405  n.,  496. 

BONDS, 

penal,  see  Liquidated  Damages. 

BREACH  OF  CONTRACT, 

see  Anticipatory  Breach ;  Contract. 

BREACH  OF  PROMISE, 

measure  of  damages  in,  125  n.,  483,  602,  604.  606. 

seduction  as  aggravation  in,  81,  601. 

unproved  plea  of  wanton  conduct  of  plaintiff  as  aggravation  in,  SO  n. 

mitigation  in,  138  n.,  141. 

pecuniary  condition  of  parties  in,  see  Wealth. 

BUSINESS, 

tortious  injury  to,  249,  524. 

CAPACITY, 

to  earn  money  as  an  element  of  damage  when  lost,  74,  274  (L.  v.  T.),  274 
(R.  V.  A.),  439. 

CARPTERS, 
of  freight, 

measure  of  damages  for  delay  In  delivery  by,  610,  611,  613. 
measure  of  damages  for  loss,  conversion,  or  damage  to  goods,  334, 

352,  607,  609. 
measure  of  damages  as  affected  by  knowledge  of  special  circumstan- 
ces, 189,  195,  610,  611,  613. 
whether  delay  is  cause  or  condition  of  loss,  171, 
of  passengers, 

measure  of  damages  for  refusal  to  carry,  67. 
liability  for  inconvenience  caused,  64,  443. 

liability  for  sickness  or  injury  caused  by  ejection,  177,  181,  188. 
liability  as  affected  by  knowledge  of  special  circumstances,  64,  181. 
liability  for  injuries  to  person,  70,  74. 
liability  for  exemplary  damages,  101,  112,  118. 

difference  in  measure  of  damages  in  contract  and  in  tort  actions,  181, 
187,  400, 

CERTAINTY, 

requisite  of,  as  to  nature  and  extent  of  damage,  241,  245,  249,  256. 
necessity  of  proving  all   pecuniary   injuries,   64,   261,  552   (T.  v.   B.),   7, 

16,  18  n. 
losses  sustained  recoverable,  if  proved,  64,  67,  79  (L.  v.  F.),  241,  439. 
gains  prevented  recoverable  when  shown  with  certainty,  241. 
profits  in  .speculative  enterprises,  271,  272,  274  (L.  v.  T.). 


INDEX.  ' 


[The  figures  refer  to  pages.] 

CERTAINTY— Continued. 

profits  in  now  bnsinoss.  192,  24o  20G.  __ 
nrofits  in  estaMisliwl  business.  249.  2.w.  2.jS. 
profits  upon  wrongful  dissolutiou  of  partnership.  2oo. 
profits  from  rewards.  20 1. 

nrofits  from  prizes.  2r..'>.  _^„    ,,-q 

profits  when  plaintiff  is  employed  on  2/^!"  L  , % V  ofV^R   v.  A.).  270. 
nrofits    as  proof  of  eaminp:  oapaoity.  .4,  2.4  (U  v.   \X  -.-;,  *'^        '' 
profits  lost  by  reason  of  failure  to  pay  or  loan  money.  o'Jo.  o^ 

CH.\KACTER. 

see  Reputation. 

CHILD.  ^    ^^ 

action  for  death  of,  499. 

action  for  injuries  to,  see  Seduction.  „„„   .^a 

act  of.  upon  question  of  remoteness  of  damage,  ICO. 
liability  for  exemplary  damage,  97  n. 

CIPHER  MESSAGES. 

see  Telegraph  Companies. 

CLOTHING,  ,  ^^  ,   ^ 

value  of  secondhand,  see  value. 

COAL,  „,  ,^„, 

wrongful  mining  of,  see  Wrongdoer. 

COEXISTENCE  OF  WRONG  AND  LOSS,  „    .«   oqa   9Qr. 

must  be  present  to  justify  allowance  of  damage,  12,  2S0,  2SG. 

COMMERCIAL  PAPER, 

measure  of  damages  in  conversion  of,  3o2  n. 

COJ^IPENSATION. 

in  full,  aim  of  law,  65,  68,  346,  3o2. 

exemplary  damages  as  an  exception  to  general  rule.  llS. 

liniitpfl  to  direct  consequences,  14.j  to  ^-v.         ^  .    .      o<i  «■/%  oca 

iSSu^d  ',0  those  provable  -'* J--""^  f,f 'i^e'pSn^M  uufsuffoHng 

in  cases  involving  pain  and  mental  sutteiiUo,  see  ram, 

CONSEQUENTIAL, 

see  Direct  Damages. 

°°\'Sf  fei^o^vSle  in  aC.ons  on  warranties  in  deoas.  5S4,  SSO. 

CONSTRUCTIVE   SERVICE, 

see  Employ^. 
CONTINUING   CONTRACTS 

damages  for  breach  of,  303  to  3^5. 

^^^SS^^^Ses  through.  292  to  303. 

^^g^en«^?^measure  of  damages  for  breach  of,  241.  533.  526  to  541.  500. 
effect  of  motive  in  breach,  12o  n 
mental  suffering  in  actions  of,  64,  460,  ibH. 

see,  also.  Breach  of  Promise, 
substantial  performance  of,  534. 

see    also.  Quantum  Meruit. 
'eS=  tSI^  ir^plS;Si.?i?n%-;Sru.a„ce,  see  Expenses. 

CONVERSION, 

see    also.  Detention.  ^ 

meSure  of  damages  in.  348,  395,  510,  ol3. 

of  X"'or''of''Sc&'o"f  fluctuating  value,   see   Highest  Intermediate 
wh(^e"article  not  obtainable  in  market,  see  Value. 


618  INDEX. 

[The  figures  refer  to  pages.] 
CONVERSION— Continued. 

of  articles  of  peculiar  value,  see  Value. 

return  of  property  as  reduction  of  damage  In.  305. 

owner  not  required  to  accept  return  of  article,  397,  .399  n. 

application  of  article  by  law  to  benefit  of  owner  as  reduction,  398,  399. 

COSTS, 

when  recoverable,  88,  428,  432,  433,  435. 
attorney's  fees  as  costs,  see  Counsel  Fees. 

COUNSEL  FEES, 

not  usually  recoverable  by  litigant,  88. 

recoverable  in  actions  on  warranty.  434  n.,  437. 

recoverable  when  occasioned  by  defendant's  wrongful  act,  432.  433.  434  n., 

435,  522. 
when  recoverable  on  injunction  or  attachment  bonds,  428,  429  n.,  430. 
whether  must  actually  have  been  paid,  432  n. 

COURT, 

see  Jury ;  Verdict 

COVENANTS, 

measure  of  damage  for  breach  of,  see  Real  Property. 

CREDIT, 

injury  to  as  item  of  damage,  7,  524. 

CRIMINAL  CONVERSATION, 
measure  of  damages  in,  402. 
mitigation  in  action  for,  143  (P.  v.  C). 

CROPS, 

damage  by  flooding,  346. 

damage  by  reason  of  breach  of  warranty  as  to  seeds,  200  n.,  2G9. 

protection  of  when  wrongful  act  is  done,  221. 

• 

DAMAGE, 

inferred  from  every  invasion  of  a  right,  see  Nominal  Damages, 
when  a  question  of  law,  63,  65,  67. 

DAMNUM  ABSQUE  INJURIA, 
doctrine  of,  1,  2. 

DEATH, 

damages  not  recoverable  for,  at  common  law,  496  n. 

measure  of  damages  for,  under  statute,  405  n.,  494,  496,  499,  501. 

DECEIT, 

measure  of  damages  in  action  for,  see  Vendor, 

DE  MINIMIS  NON  CURAT  LEX, 
doctrine  of,  12,  13,  15. 

DETENTION  OF  PROPERTY, 
damages  for,  516  (A.  v.  F.),  518. 

DIRECT  DAMAGES, 

in  tort,  145  to  ISO ;  446  to  477. 

whether  result  need  have  been  anticipated,  148,  150,  173,  184,  163  n. 

common  experience  as  a  test  of  directness,  148,  160. 

intervening  act  of  a  responsible  agency,  163,  164  (V.  v.  W.),  164  (G. 
V.  K.)  106  n.,  167. 

intervening  act  of  irresponsible  agency,  154,  156,  160,  163  n. 

when  intervening  act  of  responsible  agency  should  have  been  antici- 
pated, 166. 

whether  fact  that  event  would  not  have  happened  but  for  act  is 
determinative,  150. 

continuous  succession  of  events  between  act  and  result,  148,  154,  156. 

whether  wrong  was  a  condition  or  cause  of  injury,  158,  IGS,  169,  171. 

effect  of  illegality,  160. 


INDEX.  619 

[The  figures  refer  to  pages.] 
DIRECT  DAMAGES— Continued. 

injury  in  attempt  to  escape  peril  caused  by  defendant's  act,  177,  181, 

187,  187  n. 
effect  of  predisposition  to  disease.  173,  175,  163  n. 
In  contract,  189  to  220.  245.  610  to  013. 
see,  also.  Hadley  v.  Baxendale. 
only  natural  results  or  those  in  contemplation  of  parties  recoverable. 

ISO. 
when  article  usable  for  special  purpose.  192.  207. 
whether  a  resale  is  within  the  contemplation  of  parties,   195,   197. 
209  n, 
•   recovery  when  resale  was  at  an  unusual  fisrure,  195,  207. 
liability  for  natural  results.  199.  201.  209,  211. 
loss  on  subcontracts,  see  Subcontracts. 

DISCRETION  OF  JURY, 

in  what  actions  allowed  to  be  exercised,  see  Jury. 

DISEASE, 

communicated  by  animals,  209,  211  n. 

DISFIGUREMENT, 

as  an  element  of  damage,  445  n. 

DIVISIBLE  CONTRACTS. 

time  of  measuring  damages  for  breach  of,  322  n.,  323. 

DUTTT  TO  SEEK  RE-EMPLOYMENT, 

see  Employ^. 

EMINENT  DOMAIN, 

reduction  of  damages  by  benefits  conferred,  403, 

EMPLOY^, 

damages  in  action  against  employer,  310.  313.  319  n. 

duty  to  seek  re-employment,  228.  232.  233,  313. 

whether  must  accept  re-employment  from  defendant,  233. 

reduction  of  recovery  by  amounts  so  earned.  228,  232. 

rule  not  applicable  to  all  forms  of  contract.  230. 

recovery  where  employg  has  not  fully  performed,  see  Quantum  Meruit. 

loss  of  employment  as  remote  consequence  of  tort,  164  (V.  v.  W.),  1G7. 

ENTIRETY  OF   RECOVERY, 

a  cause  of  action  cannot  be  split,  289. 
recovery  of  future  damages,  291  n.,  319. 

when  successive  actions  may  be  maintained,  292,  303.  305,  307. 
permanency  of  injury  as  affecting  quantum  of  recovery,  29G,  299.  302, 
303  n. 

EXCESSIVE  DAJVIAGES, 
see  Verdict. 

EXEMPLARY    DAMAGES, 

where  and  for  what  acts  recoverable,  65,  68.  85,  87,  88,  88  n.,  90,  90  n.. 

93,  97. 
when  act  is  done  by  defendant's  agent,  101,  112,  118,  122. 
whether  recoverable  against  a  cori)oration,  101.  112,  118. 
the  relation  of,  to  criminal  punishment,  90,  93.  97. 
not  generally  allowed  in  actions  on  contract,  125  n. 
not  recoverable  if  offender  has  died,  124  n. 

EXPECTATION  OF  LIFE, 

in  determining  quantum  of  recovery,  142  n.,  487,  501. 

EXPENSES, 

for  medical  services  in  personal  injury,  238. 

for  nursing  in  personal  injury.  404. 

of  litigation,  see  Costs ;    Counsel  Fees. 

in  avoiding  consequeuces.  2.';S,  240.  42.">  (M.  v.  B.).  427,  516  (G.  v.  W.). 

in  defending  suit  on  warranty,  434  n.,  437. 

in  preparation  for  performance  of  contract,  241,  422,  423,  425  (H.  v.  II.). 


620  INDEX. 

[The  figures  refer  to  pages.] 
FALSE   IMPRISONMENT, 

measure  of  rlaruaffes  for,  fil.  486. 

mental  suffering  for,  475  (H.  v.  G.). 

exemplai'y  damages  in,  57. 

consequential  damages  in,  1G7. 

FENCES, 

damages  for  interference  with,  221. 

FINANCIAL  CONDITION, 
see  Wealth. 

FIRE, 

loss  in  pulling  down  buildings  to  stop.  2. 
what  are  direct  damages  in  case  of,  145. 

FLUCTUATIONS  IN  VALUE. 

see  Highest  Intermediate  Value. 

FRAUD, 

damages  arising  from,  520  to  522. 

FRIGHT. 

see  Mental   Suffering. 

FUNCTIONS. 

of  court  and  jury,  see  Jury;    Verdict. 

FUTURE   DAiNLACxES. 

when  recoverable,  291  n. 
see,  also,  Entirety. 

GAINS  PREVENTED. 

whether  recoverable,  see  Certainty. 

GOOD  FAITH, 

importance  of  in  action  for  failure  to  convey  land,  see  Real  Property. 

HADLEY  V.  BAXENDALE, 

doctrine  of,  1S9  et  seq.,  212  n.,  546,  549,  583,  610,  611,  613. 

HIGHEST  INTERMEDIATE  VALUE, 

rule  applied  in  cases  of  conversion,  360,  364,  3G8,  372,  514 

rule  applied  in  cases  of  sale,  356,  357,  370. 

in  cases  of  commodities,  357,  360.  372. 

in  cases  involving  stock,  356,  361,  364,  368,  370. 

in  action  on  replevin  bond,  374  n. 

IMPROVEMENTS  ON  PROPERTY  BY  WRONGDOER, 

see  Wrongdoer. 

INCONVENIENCE, 

as  an  element  of  damage,  64,  67,  442,  443. 

INDEMNITY, 

measure  of  damages  in  contracts  of,  596,  597,  599. 

INJUNCTIONS, 

costs  incurred  in  dissolving,  whether  recoverable,  428,  429  n.,  430. 

INJURIA  SINE  DAMNO, 

doctrine  of,  12. 

INJURY    TO    PERSONALTY, 

measure  of  damages  for,  516  (G.  v.  W.). 

INSULT, 

recovery  for,  as  aggravation,  78,  79,  86,  97,  101,  112,  118,  122. 

INSURANCE, 

measure  of  damages  in  contracts  of,  601. 

money  so  received  does  not  go  in  reduction  of  damages,  401,  403. 


INDEX.  621 

[The  figures  refer  to  pages.] 
INTEREST, 

as  (iMiiiapres,  40(5. 

on  sums  of  nionoy  priy;ihlo  at  a  fixotl  tiino,  40G.  503. 

on  liquidated  demands.  400.  4ir». 

on  uiili(|uidated  demands  in  I'ontraot.  400. 

in  tort  aetions,  .'^40.  41 H.  41 G,  513,  514,  510  (A.  v.   F.),  51S. 

for  vexatious  delay,  415. 

for  detention  of  property.  510.  518.  400. 

as  incident  in  action  for  conversion,  .340. 

as  incident  in  action  on  covenant  of  warranty,  400. 

amount  of.  on  notes  after  maturity,  41S,  410. 

compound,  wlien  allowed,  421. 

INTETtVEXIXrx   CAUSE. 

what  is  deemed  an,  see  Direct  Damages. 

JUDGMENT. 

wlaeu  set  aside  by  court,  see  Verdict. 

JURY, 

see.  also.  Verdict, 
function  of  in  estimating  damages.  55.  56.  57.  63,  64. 
discretion  of  in  tort  actions,  55,  56,  57,  00  (R.  v.  P.).  05,  OS,  72.  74.  118. 
efl'ect  of  misconduct  of.  70  n. 
disci'etion  of.  not  an  arbitrary  one,  07. 
duty  of,  to  follow  instructions,  70  ru 

LANDLORD  AND  TExXANT. 

recovery  iu  actions  concerning,  503  n. 

LIBEL, 

see  Slander. 

LIMITED  INTERESTS  IN  PROPERTY, 
suits  by  bailee  and  bailor,  327. 

suits  by  mortgagee  and  mortgagor  of  person.ilty.  326. 
suits  by  mortgagee  and  mortgagor  of  realty,  ooO,  332. 
suits  against  lienholder,  32.1,  300. 
suits  by  tenant  less  than  in  fee,  329. 

IJQUIDATED   DAMAGES. 

what  damages  may  be  liquidated.  20.  35.  37,  41. 

one  penalty  for  several  breaches  of  varying  importance.  23  (A.  v.  W.).  26. 

one  sum  payable  in  event  of  breach,  irrespective  of  its  magnitude,  35. 

quantum  of  breach,  when  unimportant,  23  (II.  v.  D.).  28,  35. 

amount  of  recovery  when  damages  are  liquidated,  28. 

whether  terms  used  are  determinative,  26,  28. 

alternative  agreements.  43,  48,  51,  53. 

deposits,  whether  penalty  or  liquidated  damages,  39. 

whether  recovery  can  ever  exceed  sum  named  as,  44,  47. 

LORD  CAMPBELL'S  ACT, 
effect  of,  408,  503  n. 

LOSS, 

if  actually  sustained  and  direct,  Is  alwaj'S  recoverable,  64,   67,  70   (I>. 
V.  F.),  241,  430. 

MALICE, 

see  Exemplary  Damages. 

MALICIOUS  PROSECUTION, 
measure  of  damages  iu,  522. 

MALICIOUS  USE  OF  LEGAL  MACHINERY, 

instances  of,  and  measure  of  damages  in,  85.  522,  524. 

MARRIAGE, 

breach  of  promise  of,  see  Preach  of  Promise. 

wrongful  interference  with  marital  relations,  see  Criminal  Conversation. 


622  INDEX. 

[The  figures  refer  to  pages.] 
MASTER   AND   SERVANT. 

action  for  injuries  to  servant,  489,  490. 
contracts  involving,  see  Employ^. 

MEDICAL  EXPENSES, 

as  an  element  of  damage,  6o,  238,  427. 
whether  recoverable  if  gratuitous,  404. 
necessity  for  incurring,  23G,  238,  238  n. 

MENTAL  SUFFERING, 

fright  or  shock  as  cause  of  physical  injury,  44?.  440.  4."1.  453.  45.5. 

as  a  result  of  physical  injury,  444,  448  n. 

as  an  element  of  aggravation  in  personal  actions,  67,  68,  79,  93,  450,  453 

(M.  V.  G.). 
future,  445  n. 
in  specific  actions. 

in  assault,  78.  79  (L.  v.  F.). 

in  breach  of  promise,  81.  G02.  G04.  606  n. 

in  actions  for  death,  494,  496.  499. 

in  actions  for  disinterment  of  a  corpse.  450. 

in  actions  for  dissection  of  a  corpse.  458. 

in  false  imprisonment.  475  (H.  v.  G.). 

in  indecent  assault,  456.  457  n. 

in  personal  injury  actions,  93,  444. 

in  trespass  to  or  conversion  of  property,  SO.  86.  473. 

in  seduction.  341.  489.  491. 

in  slander  and  libel,  79  (F.  v.  A.),  446.  447,  475  (P.  v.  E.),  476  n. 

in  actions  against  telegraph  companies,  460,  468. 

MESNE    PROFITS, 

when  considered  in  allowance  of  damages,  579,  5S3. 

MISCONDUCT  OF  JURY, 

as  ground  for  a  new  trial,  76  n. 

MITIGATION  OF  DAMAGES. 

theory  of  allowance  for,  126,  129,  132,  136,  141. 

reduction  of  exemplary  damages.  132,  135  n. 

retraction  as  true  mitigation,  143  (H.  v.  O.). 

matters  of  justification  cannot  be  plead  as,  128  n.,  139. 

value  added  by  trespass,  394. 

in  action  of  assault  and  battery,  126,  128,  129,  131. 

in  breach  of  promise,  138  n.,  141. 

in  slander  and  libel,  20,  136.  139,  476  n. 

in  criminal  conversation,  143  (P.  v.  C). 

duty  to  mitigate,  see  Avoidable  Consequences. 

expenses  incurred  in  attempt  to  mitigate,  see  Expenses. 

return  of  property  after  conversion  as  mitigation,  see  Conversion. 

provocation  as  mitigating  circumstance,  supra,  and  see,  also.  Provocation. 

MONEY, 

damages  for  failure  to  pay  money,  593,  597. 
damages  for  failure  to  loan  money,  594. 

NATURAL  RESULT, 
see  Direct  Damages. 

NERVOUS  SHOCK. 

see  ISIental  Suffering. 

NOMINAL  DAMAGES, 

not  given  unless  there  has  been  a  wrongful  act,  12. 

but  are  allowed  whenever  a  right  is  invaded,  although  the  damage  be 

inappreciable,  394. 
allowed  in  contract.  7,  16,  19  n.,  64. 
allowed  in  tort,  4,  5,  6,  9,  15,  19. 

allowed  to  prevent  acquisition  of  adverse  right,  8.  11  n. 
when  no  actual  damage  proved.  552  (T.  v.  B.),  7,  16.  18  n. 
in  actions  against  vendor  of  realty,  see  Real  Property. 


INDEX.  623 

[The  figures  refer  to  pages.] 
NOMINAL  DAMAGES— ContiiuuMl. 

in  actions  against  public  oflicers,  19. 

when  no  reversal  for  failure  to  allow,  20,  22  n. 

NONDELIVERY. 

action  for,  see  Vendor. 

NOTICE. 

of  contemplated  result  as  affecting  question  of  remote  dam.Tje.  see  Direct 

Da  ma, COS. 
of  subcontract  as  affecting  recovery  for  damages,  see  Subcontract 
to  warrantor  before  defending  under  a  warranty,  434  n.,  437. 

NUISANCE, 

entirety  of  damages  in,  see  Entirety. 

NURSING, 

see  Medical  Expenses. 

OFFICE. 

loss  of  as  result  of  wrong,  generally  remote.  IHS  n.     Cf.  164  (V.  v.  W.)  & 
167. 

OPERATION, 

necessity  of  submitting  to,  to  avoid  consequences,  238  n. 

OWNER, 

see  Limited   Interest. 


PAIN. 

physical,  w^hen  an  element  of  damage,  65,  70.  74,  79  (L.  y.  F.),  99,  173, 

i75,  439. 
measure  of  damages  for,  441  n. 

future  pain,  when  an  element  of  damage,  445  n.,  4S7, 
mental,  see  Mental  Suffering. 

PARTNERSHIP, 

damages  for  wrongful  dissolution,  255. 

PASSENGER, 
see  Carriers. 

PECUNIARY  DAMAGE, 

must  be  proved,  if  any,  7.  16,  18  n.,  64,  2G1,  .552  (T.  v.  B.).     But  cf.  65. 
injury  niav  be  recovered  for  though  no  pecuniary  damage,  6.5.  OS.  78,  79, 
80,  SI. 
see,  also.   Exemplary  Damages;    Seduction;    Mental  Suffering, 
pecuniary  condition  of  parties,  see  Wealth. 

PENALTY, 

see  Liquidated  Damages. 

PERSONAL  INJURY, 

measure  of  damages  for,  65,  74,  238,  404,  487. 

discretion  of  jury  in.  56,  65,  70,  72,  74. 

mitigation  in,  SJ.  142  n. 

interest  iu  actions  of,  when  recoverable,  413,  416. 

duty  to  avoid  consequences.  236,  238  n. 

mental  suffering  as  incident  to,  see  Mental  Suffering. 

PERSONAL  PROPERTY, 
see  Vendor ;  Conversion. 

PHYSICIAN'S  BILLS, 
see  Medical  Expenses. 

PROFITS, 

see  Certainty. 

PROMISSORY  NOTES, 

recovery  of  interest  on  after  maturity,  418.  419. 


624  INDEX. 

[The  figures  refer  to  pages.] 

PROMOTION, 

when  chance  of  an  element  of  damage,  277. 

PROPERTY, 

see  Real  Property ;    Conversion ;    Vendor. 

PROSPECTIVE  DAMAGES, 

see  Entirety. 

PROVOCATION, 

as  mitigation  in  assault,  &3.  126,  12S,  129,  13L 
as  mitigation  in  slander,  13S  n. 

PROXIMATE    CAUSE, 
see  Direct  Damages. 

QUANTUM  MERUIT, 

recovery  upon,  when  defendant  is  In  default.  '9,2.  m?,.  537,  .T,8,  530,  5G0. 
recovery  upon,  when  plaintiff  in  default.  n2iK  ."i28.  530. 
when  act  not  done  and  no  one  in  default,  537  (D.  v.  B.). 

QUIET  EN.IOYMENT, 
see  Real   Property. 

QUOTIENT    VERDICTS, 
see  Jury. 

REAL  PROPERTY, 

damages  for  breach  of  contract  to  buy.  .*591.  592. 

damages  for  breach  of  a  contract  to  sell,  562,  563.  564.  .564  n.,  568,  569, 

570,  572,  574  n. 
damages  for  breach  of  covenant  against  incumbrances,  587  (H.  v.  M.), 

587  (M.  V.   S.),  589. 
damages  for  breach  of  covenants  of  title  and  of  quiet  enjoyment,  574,  579, 

582. 
damages  for  breach  of  covenant  of  seisin.  574,  579. 
what  consideration  recoverable,  584.  586. 
damage  in  actions  of  trespass  to,  80,  86,  280,  286,  374  to  394,  504,  506 

507,  508  n.,  509. 
damages  when  realty  appropriated  by  eminent  domain,  405. 
Hadley  v.  Baxendale  as  applietl  to  contracts  concerning,  583. 
recovery  in  case  of  nuisance  to,  see  Entirety. 

REDUCTION  OF  ORIGINAL  LOSS, 
see  jNIitigation;    Benefits  Conferred. 

REMITTITUR, 

when  permitted,  71  n. 

REMOTE   CAUSE, 

see  Direct  Damage. 

REPUTATION, 

as  affecting  assessment  of  damages,  136.  139. 

RESALE, 

when  necessary  for  vendor  to  resell,  see  Avoidable  Consequences, 
price  as  indicating  value  when  no  market  price,  see  Value, 
whether  loss  upon,  is  direct,  see  Direct  Damages. 

RETURN, 

of  property,  as  reduction  of  damage,  see  Conversion. 

SALES, 

see  Vendor. 

SEDUCTION, 

measure  of  damages  in.  theory  of  action,  141,  489,  491. 
as  aggravation  in  breach  of  promise  suit,  81. 
financial  condition  of  defendant  in,  see  Wealth. 


INDEX.  623 

[The  figures  refer  to  pages.] 
SEEDS, 

see  Crops. 

SEISIN, 

see  Real  Property. 

SERVANT, 

see  Employs;  Master  and  Servant. 

SERVIOTS, 

see   Employe. 

SEVERANCE  FROM  REALTY, 
see  Wrongdoer. 

SLANDER  AND  LIBEL, 

discretion  of  jury  in,  55,  60  (G.  v.  B.).  71. 

exemplary  damages  in,  122,  482  (B.  v.  H.). 

mental  suffering  in,  79  (F.  v.  A.),  44G.  447. 

consequential  damages  in,  1G4  (V.  v.  W.),  104  (G.  v.  K.),  166  n.,  447,  475 

(P.  V.  E.). 
mitigation  in,  20,  136,  139,  476  n. 
plea  of  truth  as  aggravation,  80  n. 

SPECULATIVE   CONTRACTS, 
see  Certainty. 

SPLITTING  CAUSES  OF  ACTION, 
see  Entirety. 

STIPULATED  DAMAGES, 
see  Liquidated  Damages. 

STOCK, 

damages  for  conversion  or  nondelivery,  see  Highest  Intermediate  Value. 
SUBCONTRACT, 

loss  by  reason  of,  as  an  element  of  damage,  195,  197,  203,  207,  209  n.,  548. 
SUBSTANTIAL, 

performance  of  contracts,  534. 

SUPPORT, 

damages  for  breach  of  contract  to,  308. 

TELEGRAPH  COMPANIES, 

direct  damages  in  connection  with,  212,  215,  216,  220  n. 

cipher  messages  in,  212,  215,  210. 

certainty  in  connection  with,  201. 

mental  suffering  in  connection  with,  400,  468. 

TIMBER, 

damages  for  cutting  of,  see  Wrongdoer. 

TIME. 

what  for  determining  value  In  case  of  conversion,  348,  510,  513. 

see,  also.  Highest  Intermediate  Value, 
what  for  determining  value  in  case  of  completed  breach  of  contract,  353  n., 
547  et  seq.,  010,  Oil,  613. 

see,  also.  Highest  Intermediate  Value, 
what  for  determining  value  in  case  of  anticipatory  breach  of  contract, 
241,  313,  319,  320,  322  n.,  323. 

TORT  ACTIONS, 

discretion  of  jury  in,  see  Jury. 

TRESPASS, 

measure  of  recovery  in  action  of,  see  Real  Property. 

as  affected  by  permanence  of  injury,  see  Entirety. 

as  affected  by  several  ownerships,  see  Limited  Interests  In  Property. 

as  affected  by  severance  of  trees  or  minerals,  see  Wrongdoer. 
TROVER, 

see  Conversion. 

Gilb.Dam.— 40 


626  INDEX. 

[The  figures  refer  to  pages.] 

UNLIQUIDATED   DAMAGES, 

when  they  bear  interest,   see  Interest. 

USE  OF  PROPERTy, 

when  an  element  of  damage,  245,  516  (A.  v.  F.),  518. 

VALUE. 

as   distinguished  from   market  price,   336. 
ordinarily  measured  by  market  price,  336. 
exceptions, 

when  market  price  artificially  enhanced,  334,  336. 

when  no  market  price  anywhere,  345  n.,  34!>,  n.'n. 

when  no  market  price  in  local  market.  33!>.  340,  341,  342,  344,  352. 

when  article  is  of  peculiar  value,  341,  342. 

when  article  is  secondhand.  34G,  348. 

when  article  is  patented.  518. 
retail  or  wholesale  price,  514. 
original  cost  as  proof  of  value,  346,  349. 

availability  for  a  particular  use  as  affecting  value,  192.  354. 
when  resale  price  is  taken  as  proof  of  value,  209  n.,  344,  345  n. 
fluctuations  in,  see  Highest  Intermediate  Value, 
added  by  wrongdoer,  see  "Wrongdoer. 

VENDOR  AND  VENDEE, 

measure  of  damages  in  action  against  vendor  for  failure  to  deliver  per- 
sonalty, 203,  207,  222,  33G,  340,  357,  547,  548.  549.  551. 

measure  of  damages  in  action  against  vendee  for  refusal  to  receive  per- 
sonalty, 552  (T.  V.  B.),  552  (S.  v.  V.),  555,  557,  500. 

measure  of  damages  in  action  against  vendor  for  deceit,  521  (S.  v.  W), 
.521  (P.  V.  D.). 

measure  of  damages  In  action  against  vendor  on  warranty  of  title,  541, 
542  (G.  V.  H.). 

measure  of  damages  in  action  against  vendor  on  warranty  of  quality, 
542  (L.  V.  K.),  544,  545,  546. 

measure  of  damages  in  actions  concerning  real  property,  see  Real  Prop- 
erty. 

direct  results  of  breaches  of  contract  involving,  see  Direct  Damages. 

VERDICT, 

power  of  courts  to  set  aside, 

because  excessive,  55,  57,  60  (G.  v.  B.),  61,  63,  70,  71,  78. 

because   inadequate,   72,    74. 

because  of  jury's  misconduct,  76  n. 

Because  of  failure  of  jury  to  follow  instructions,  70  a. 

WARRANTIA  CHARTS, 

ancient  writ  of,  575,  581  n.,  582. 

WARRANTY, 

measure  of  damages  in  actions  for  breach  of^ 
in  case  of  personalty,  see  Vendor, 
in  case  of  realty,  see  Real  Property, 
as  to  seeds,  see  Crops. 

WEALTH, 

of  plaintiff  as  affecting  allowance  of  damages,  478,  480,  481. 

of  defendant  as  affecting  allowance  of  damages,  78,  141,  475  (P.  v.  E.), 

482,  483. 
how  proved,  483. 

WRONGDOER, 

when  value  added  by,  is  recoverable,  374. 

when  wrongdoing  is  innocent,  376.  378,  381,  387,  389. 

when  wrongdoing  is  willful,  392,  394  n. 

when  property  has  been  sold  to  an  innocent  purchaser,  387,  392. 


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